Case 1:02-cv-02077-ESH Document 1 Filed 10/24/02 Page 1 of 12
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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

and

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

and

AMERICAN BOOKSELLERS FOUNDATION FOR FREE

EXPRESSION

139 Fulton Street., Suite 302

New York, NY 10038,

CASE NUJ.!BER

1: 02CV02077

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

JUDGE: Ellen Segal Huvelle DECK TYPE: FOIA/Privacy Act DATE STAMP, 10/24/2002

;('
.

Plaintiffs,

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

FILED
........ OCT 24ZOOZ

COMPLAINT FOR INJUNCTIVE RELIEF 1. This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for injunctive and other appropriate relief, and seeking the immediate processing and release of agency records requested by plaintiffs from defendant Department

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of Justice ("DOJ") and DOJ's component, Federal Bureau of Investigation ("FBI").
2. Plaintiffs' FOIA request seeks the release of records related to the government's implementation of the USA PATRIOT Act ("Patriot Act" or "Act"), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001), legislation that was passed in the wake of the September 11 terrorist attacks. Neither this suit nor the underlying FOIA request questions the importance of safeguarding national security. However, there has been growing public concern about the scope of the Patriot Act and the government's use of authorities thereunder, particularly in relation to constitutionally protected rights. Plaintiffs seek records that are critical to the public's ability to evaluate the government's use of vast new surveillance powers, and whose release can only serve national security, not undermine it.
3. Plaintiffs requested expedited processing of their FOIA request on the grounds that the records sought pertained to "[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence," 28 C.F.R. § 16.5 (d) (1) (iv). The government granted that request by letter dated September 3. To date, however, the government has furnished no substantive response to the underlying FOIA request. More than two months have now passed since that request was filed.
Jurisdiction and venue 4. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant
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to 5 U.S.C. §§ 552 (a) (4) (B) and 552 (a) (6) (E) (iii). This court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-706. Venue lies in this district under 5 U.S.C. § 552(a) (4) (B).
Parties 5. Plaintiff American Civil Liberties Union ("ACLU") is a nationwide, non-profit, non-partisan organization with almost 300,000 members dedicated to the constitutional principles of liberty and equality. The ACLU's work includes assessing the impact of federal legislation on civil liberties. The organization publishes newsletters, news briefings, right-toknow handbooks, and other materials that are disseminated to the public. Its material is widely available to everyone, including tax-exempt organizations, not-for-profit groups, law students and faculty, for no cost or for a nominal fee through its public education department. The ACLU also disseminates information through its website <www.aclu.org> and through an electronic newsletter, which is distributed to subscribers by e-mail. 6. Plaintiff Electronic Privacy Information Center ("EPIC") is a public interest research organization incorporated as a not-for-profit corporation in Washington, DC. EPIC's activities include the review of federal investigative activities and policies to determine their possible impact on civil liberties and privacy interests. Among its other activities, EPIC publishes books, reports, and a bi-weekly electronic newsletter. EPIC also maintains a heavily-visited website <www.epic.org> containing extensive information on privacy issues, including
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information EPIC has obtained from federal agencies under the FOIA.
7. Plaintiff American Booksellers Foundation for Free Expression ("ABFFE") is the bookseller's voice in the fight against censorship. Founded by the American Booksellers Association in 1990, ABFFE's mission is to promote and protect the free exchange of ideas, particularly those contained in books, by opposing restrictions on the freedom of speech; issuing statements on significant free expression controversies; participating in legal cases involving First Amendment rights; collaborating with other groups with an interest in free speech; and providing education about the importance of free expression to booksellers, other members of the book industry, politicians, the press and the public. ABFFE disseminates information about dangers to free expression on its website <www.abffe.com>. ABFFE also publishes a monthly newsletter, which it distributes to subscribers, and makes other publications available to the public through its on-line store. Some of the materials are offered for sale; others are available without charge.
8. Plaintiff Freedom to Read Foundation ("FTRF") is a nonprofit membership organization established in 1969 by the American Library Association to promote and defend First Amendment rights; to foster libraries as institutions fulfilling the promise of the First Amendment for every citizen; to support the rights of libraries to include in their collections and make available to the public any work they may legally acquire; and to set legal precedent for the freedom to read on behalf of all
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citizens. Plaintiff FTRF joined the FOIA request of ACLU, EPIC, and ABFFE by letter to defendant dated Oct. 21, 2002.
9. Defendant Department of Justice ("DOJ") is a Department of the Executive Branch of the United States Government. DOJ is an agency within the meaning of 5 U.S.C. § 552(f) (1) DOJ is responsible for FBI's compliance with the FOIA.
The Patriot Act 10. The Patriot Act was enacted in October, 2001. The President signed it into law on October 26. The Act vastly expanded the government's power to obtain personal information pertaining to individuals present in the United States, including permanent residents and United States citizens. 11. Section 215 of the Act amended the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq., to allow the FBI to require the production of "any tangible thing[]." The predecessor provision could be invoked only against common carriers, vehicle rental agencies, and similar entities; the Patriot Act removed this restriction. Thus, the new provision can be used to obtain circulation records from libraries, purchase records from bookstores, academic records from universities, medical records from hospitals, or e-mail records from internet service providers. The government need not show probable cause or any individualized suspicion of criminal activity; rather, it need only assert that its request is "for an authorized investigation . . to protect against international terrorism or clandestine intelligence activities." Section 215 orders can be served on United States citizens, and
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they can be issued in part on the basis of First Amendment activity. The subject of a Section 215 order is not provided any notice of the fact that her privacy has been compromised. Further, an entity from which the FBI obtains tangible things under Section 215 is prohibited from disclosing to any person that the FBI made the request.
12. Section 214 amends FISA to allow the government to employ "pen registers" and "trap and trace" devices more broadly. As under Section 215, the FBI need not show probable cause or any individualized suspicion of criminal activity. Section 214 orders can be served on United States citizens and can be issued in part on the basis of First Amendment activity. The subject of a Section 214 order is not provided any notice of the fact that her privacy has been compromised. Any entity whose assistance the government needs in order to effect the surveillance is prohibited from disclosing to any person that the government made the request.
13. Section 213 amends the Federal Rules of Criminal Procedure to allow "sneak-and-peek" searches - that is, searches for which the subjects receive notice only long after the search has been executed. Previously, the Federal Rules made no provision for delayed notice.
14. Section 206 amends FISA to allow "roving" electronic surveillance. Previously, the government was required to specify, in any application for an electronic surveillance order, the persons or entities whose cooperation would be necessary to effect the surveillance. Section 206 amends FISA
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to allow the government to obtain surveillance orders without specifying the entities or persons whose cooperation will be needed. Effectively, Section 206 allows the government to intercept all of a person's wire or electronic communi,cations, regardless of the person's location when communicating.
Widespread Public Concern about Government's Implementation of the Patriot Act
15. Since the Patriot Act was enacted in October 2001, there has been growing public concern about the scope of the Act and the manner in which the government has been using its expanded authority. Numerous newspapers and magazines have published articles and editorials questioning the necessity for the Act and doubting the wisdom of sacrificing individual liberties for the promise of increased security.
16. Public concern has become sufficiently widespread that Congress has sought to monitor closely the implementation of the Act. On June 13, 2002, the Chairman and Ranking Member of the House Judiciary Committee sent a 16-page letter to the Attorney General, noting that it is the responsibility of the House Judiciary Committee to "conduct oversight of the [DOJ's] implementation of the USA PATRIOT Act" and requesting that the Department of Justice respond to 50 detailed questions about its use of authorities under the Act. The June 13 letter requested that, if any answers required the disclosure of classified material, the DOJ "provide those answers under separate cover to the Committee in accordance with appropriate security procedures."
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17. The DOJ provided a partial response on July 26. The July 26 letter, signed by Assistant Attorney General Daniel J. Bryant, supplied answers to 28 of the 50 questions posed by the House Judiciary Committee's letter. In addition, the July 26 letter stated that classified answers to six additional questions would "be provided to the House Permanent Select Committee on Intelligence through the appropriate channels."
18. On or about August 29, the DOJ supplied answers to the remaining 22 questions posed by the House Judiciary Committee's June 13 letter. None of these answers referenced classified material.
Plaintiff's FOIA Request and Request for Expedited Processing 19. Plaintiffs submitted their FOIA request in separate letters to the DOJ and FBI, both dated August 21. (As noted above, plaintiff FTRF joined the FOIA request of ACLU, EPIC, and ABFFE by letter to defendant dated Oct. 21, 2002.) The request sought records relating to defendant's implementation of the Patriot Act, focusing on those surveillance provisions of the Act that have obvious and serious implications for individual privacy and the freedom of speech. 20. For example, plaintiffs requested all policy directives and other guidance issued by DOJ and/or FBI regarding the use of authority granted by Section 215 of the Patriot Act, which the government is reportedly using to obtain records from libraries,
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bookstores, and internet service providers. Plaintiffs also requested all policy directives and other guidance issued by DOJ and/or FBI regarding the expanded use of pen registers and trap & trace devices authorized by Section 214.
21. Plaintiffs' request also sought all records prepared or collected by DOJ and/or FBI in connection with the classified answers referenced in the DOJ's letter of July 26. Plaintiffs believe that these answers were improperly classified, as they consist only of aggregate, statistical information whose disclosure would not jeopardize ongoing investigations or any legitimate government interest.
22. Under separate cover, but also by letter dated August 21, plaintiffs requested expedited processing of their FOIA request, stating that the request pertained to "[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence" (internal quotation marks omitted).
23. By letter dated September 3, the DOJ acknowledged receipt of plaintiffs' FOIA request and granted plaintiffs' request for expedited processing, noting that the DOJ had "initiated searches in the Offices of the Attorney General, Deputy Attorney General, Associate Attorney General, Legislative Affairs and Legal Policy" and that the DOJ would notify plaintiffs "as soon as those searches are completed."
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24. By letter to the FBI dated September 5, plaintiffs sought confirmation that the FBI (as well as the DOJ) would expedite the processing of plaintiffs' FOIA request.
25. The FBI responded by letter dated September 18, confirming that the FBI would expedite processing of plaintiffs' request.
26. By telephone on October 16, defendant DOJ stated that it has not yet determined which records, if any, to disclose in response to plaintiffs' FOIA request.
Defendants' Failure to Disclose the Records Sought 27. Notwithstanding defendant's assurance that the processing of plaintiffs' request would be expedited, to date defendant has not disclosed any record in response to plaintiffs' FOIA request nor stated which records, if any, it intends to disclose. It has now been more than two months since plaintiffs submitted their request. 28. Defendant is improperly withholding the records sought by plaintiffs' FOIA request. 29. Plaintiffs have exhausted the applicable administrative remedies.
CAUSES OF ACTION First Cause of Action: Violation of the FOIA for Failure to Make Promptly Available the Records Sought by Plaintiffs' Request 30. Plaintiffs repeat and reallege paragraphs 1-29.
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31. Defendant's failure to make promptly available the records sought by plaintiffs' request violates the FOIA, 5 U.S.C. § 552 (a) (3) (A).
Second Cause of Action: Violation of the FOIA for Failure Timely to
Respond to Plaintiffs' Request 32. Plaintiffs repeat and reallege paragraphs 1-29. 33. Defendant's failure timely to respond to plaintiffs' request violates the FOIA, 5 U.S.C. § 552(a) (6) (A) (i), and DOJ's own regulation promulgated thereunder, 28 C.F.R. § 16.6(b).
Third Cause of Action Violation of the FOIA for Failure to Expedite
the Processing of Plaintiffs' Request 34. Plaintiffs repeat and reallege paragraphs 1-29. 35. DeJendant's failure to expedite the processing of plaintiffs' request violates the FOIA, 5 U.S.C. § 552(a) (6) (E) (iii), and DOJ's own regulation promulgated thereunder, 28 C.F.R § 16.5(d).
Requested Relief WHEREFORE, plaintiffs pray that this Court:
A. order defendant immediately to state which records it intends to disclose in response to plaintiffs' FOIA request;
B. order defendant immediately to process plaintiffs' FOIA request and to disclose the requested records;

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C. award plaintiff its costs and reasonable attorneys fees incurred in this action; and
D. grant such other relief as the Court may deem just and proper.

Respectfully submitted,

/d2c~ D.C. Bar No. 360418 Electronic Privacy Information Center 1718 Connecticut Ave., N.W., Suite 200 Washington, DC 20009 Phone: (202) 483-1140 x105 Fax: (202) 483-1248
ANN BEESON JAMEEL JAFFER American Civil Liberties Union 125 Broad St. New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2629
ARTHUR B. SPITZER D.C. Bar No. 235960 American Civil Liberties Union of the
National Capital Area 1400 20th St., N.W. #119 Washington, DC 20036 Phone: (202) 457-0800 Fax: (202) 452-1868

Counsel for Plaintiffs

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 Case 1:02-cv-02077-ESH Document 26 Filed 05/19/03 Page 1 of 25

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

AMERICAN CIVIL LIBERTIES

)

UNION, et al.

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 02-2077 (ESH)

)

U.S. DEPARTMENT OF JUSTICE

)

)

Defendant.

)

____________________________________)

MEMORANDUM OPINION

In response to the events of September 11, 2001, Congress enacted the USA PATRIOT Act,1/ which gave federal officials greater power to conduct surveillance within the United States

for purposes of both preventing terrorism and monitoring the activity of foreign intelligence

agents. In this case, plaintiffs have brought an action under the Freedom of Information Act, 5

U.S.C. § 552 (“FOIA”), seeking information about how the Department of Justice (“DOJ”) has

used this new authority. As helpfully narrowed by the parties, the instant dispute centers on

certain records that DOJ claims are protected from disclosure by two FOIA exemptions.

Specifically, the information at issue concerns the number of times DOJ has used the particular

surveillance and investigatory tools authorized by the Patriot Act since the statute took effect.

To protect this information from disclosure, defendant first invokes Exemption 1, which

authorizes the withholding of records “specifically authorized under criteria established by an

Executive order to be kept secret in the interest of national defense or foreign policy and . . . in

1/ “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,” Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001) (“The Patriot Act”).

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fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Defendant further relies upon Exemption 5, which shields “inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.” Id. at § 552(b)(5). In response to these withholdings, plaintiffs argue that Exemption 1 does not preclude disclosure because the aggregate statistical data at issue here should not have been classified, and that Exemption 5 is inapplicable because they seek only factual information that can readily be segregated from those records properly protected by the deliberative process privilege.
Both parties have now moved for summary judgment on these issues. For the reasons given below, the Court concludes that DOJ’s assertion of Exemption 1 is appropriate, and that the dispute about Exemption 5 is largely illusory. Indeed, it is clear from the Court’s in camera review of the Exemption 5 material that, with only one exception, the documents at issue are not responsive to plaintiffs’ request because they do not contain the statistical information the withholding of which plaintiffs now contest. And, insofar as one document does contain statistics of the sort that plaintiffs seek, that information has in fact been properly withheld under Exemption 1. Accordingly, the Court will grant defendant’s motions for summary judgment, and deny plaintiffs’ motion.
BACKGROUND President Bush signed the Patriot Act into law on October 26, 2001. Of direct relevance to the present action, the statute includes several provisions designed to give law enforcement officers greater authority to conduct certain kinds of surveillance and searches. Most of these changes take the form of amendments to the Foreign Intelligence Surveillance Act of 1978, 50
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U.S.C. § 1801 et seq. (“FISA”).2/ First, section 214 of the Patriot Act drops FISA’s restriction on
the use of pen registers and trap and trace devices3/ against U.S. citizens and lawful permanent
aliens (whom FISA calls “U.S. persons,” 50 U.S.C. § 1801(i)). Under the amendment, these
tools may now be used against such persons, provided that the information sought is certified as
being “relevant to an ongoing 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
2/ As originally enacted, FISA allowed specially designated judges to authorize electronic surveillance “to obtain foreign intelligence information” if there is “probable cause to believe that . . . the target of the electronic surveillance is a foreign power or an agent of a foreign power” and “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” 50 U.S.C. § 1805(a)(3); see generally In re Sealed Case, 310 F.3d 717, 722-28 (Foreign Int. Surv. Ct. Rev. 2002). The statute was amended in 1994 to authorize physical searches (according to more or less the same standards), Pub. L. No. 103-359, 108 Stat. 3444 (Oct. 14, 1994), and again in 1998 to permit the use of pen registers and to allow the FBI to obtain access to certain business records in the context of antiterrorism and counterintelligence investigations, Pub. L. No. 105-272, 112 Stat. 2396, §§ 601-02 (Jan. 27, 1998).
3/ “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.” United States v. New York Tel. Co., 434 U.S. 159, 161 n.1 (1977). Pen registers are generally used to record the telephone number dialed by the subject of the surveillance. “Trap and trace” devices, in contrast, are used to record the telephone numbers of incoming calls received by the subject. See U.S. Telecom Ass’n v. FBI, 276 F.3d 620, 623 (D.C. Cir. 2001).
Another section of the Patriot Act expands the definition of pen registers and trap and trace devices so that they may be used not merely against telephones, but also against electronic communications (such as e-mail). Under these augmented definitions, pen registers allow officers to determine the routing and addressing information of a surveillance subject’s outgoing e-mail (but not the actual contents of the communication), while a tap and trace device permits similar information to be gathered from the incoming messages that the subject receives. See Patriot Act, § 216, codified at 18 U.S.C. § 3127(3)-(4).
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Constitution.” Patriot Act, § 214, codified at 50 U.S.C. § 1842(a)(1); (c)(2).4/ Before section 214 was enacted, FISA did not allow the use of pen registers and tap and trace devices against U.S. persons. Such authority could, however, be obtained outside of FISA, upon the certification of a federal or state law enforcement officer that the information “likely to be obtained is relevant to ongoing criminal investigation.” 18 U.S.C. § 3122(b)(2) (emphasis added).
Next, section 215 amends section 502 of FISA to authorize the FBI to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, or other items) for an investigation to obtain foreign intelligence information not concerning a United States person or 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.” Patriot Act, § 215, codified at 50 U.S.C. § 1861(a)(1). This amendment substantially expanded the old provision in FISA, under which the FBI could compel only the disclosure of certain business records (rather than “any tangible things”) in the possession of a limited subset of entities: a “common carrier, public accommodation facility, physical storage facility, or vehicle rental facility.” Pub. L. No. 105-272, § 602 (Oct. 20, 1998). What’s more, the Patriot Act eliminated another significant limitation on the use of this authority: the requirement that there be “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” Id. Now, in order to gain access to information
4/ Section 214 also dropped FISA’s requirement that applications for pen registers and trap and trace devices include a certification that the communication device in question had been used, or was about to be used, in order to contact a person involved in international terrorism, clandestine intelligence activities, or the agent of a foreign power. Patriot Act, § 214(a)(3), repealing 50 U.S.C. § 1842(c)(3). This change had the effect of lowering the standard for all pen register/tap and trace applications under FISA, not merely those sought for U.S. persons.
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covered by section 215, the FBI need only specify that the “records concerned are sought for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.” 50 U.S.C. § 1861(b)(2).
A third change to FISA concerns the use of so-called “roving” surveillance. With a roving wiretap, the government can intercept all of a suspect’s communications relating to the conduct under investigation, regardless of the suspect’s location, and regardless of what particular phone or e-mail account he may be using. This usually requires enlisting third parties other than those mentioned in the original surveillance order to install the monitoring device. Thus, under section 206 of the Patriot Act, a court approving a FISA order may direct common carriers, landlords, custodians, or other specified persons to furnish assistance necessary to accomplish the authorized electronic surveillance “in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specific person.” Patriot Act, § 206, codified at 50 U.S.C. § 1805(c)(2)(B). With this provision in place, the government need not return to court for a new surveillance order every time the target changes location, but instead can present a generic order to the new carrier, landlord, or custodian, “directing their assistance to assure that the surveillance may be undertaken as soon as technically feasible.” H.R. REP. NO. 107-236(I), at 60 (Oct. 11, 2001).
Finally, the Patriot Act expanded the government’s information-gathering powers in at least one other way unrelated to FISA. Section 213 provides explicit authority for federal law enforcement officers to use so-called “sneak-and-peek” warrants. Such warrants allow agents to conduct searches secretly (whether physically or virtually), to observe or copy evidence, and to depart the location searched, generally without taking any tangible evidence or leaving notice of their presence. See Congressional Research Service, The USA Patriot Act: A Legal Analysis at
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62-63 (Apr. 15, 2002). Before the enactment of the Patriot Act, a court’s ability to approve a
sneak-and-peek warrant under FED. R. CRIM. P. 41, which clearly required notice when tangible
property is actually seized, was not entirely settled. E.g., United States v. Pangburn, 983 F.2d
449, 453-55 (2d Cir. 1993) (holding that Rule 41 also requires that notice be provided where a
search warrant “authorizes covert entry to seize intangibles”). Section 213 clarified the issue,
specifically allowing officers to delay giving notice to the subject of a search if the court issuing
the warrant “finds reasonable cause to believe that providing immediate notification of the
execution of the warrant may have an adverse result.” Patriot Act, § 213, codified at 18 U.S.C.
§ 3103a(b). Moreover, although in more limited circumstances, these new warrants may also
authorize the seizure of tangible property.5/
Ever since it was proposed, the Patriot Act has engendered controversy and debate. The
Justice Department, which is largely responsible for its implementation, has provided only
limited information to the public regarding how, and how often, the new provisions described above have been used.6/ In June 2002, the House Judiciary Committee asked DOJ to respond in
5/ Specifically, the warrant must prohibit the seizure of tangible property and most wire and electronic information, unless the court finds “reasonable necessity for the seizure.” Patriot Act, § 213, codified at 18 U.S.C. § 3103a(b)(2). This clause allows for the modification of the requirement in Rule 41(f) (and perhaps in the Constitution as well) that notice be provided at the time that property is actually taken. Cf. City of West Covina v. Perkins, 525 U.S. 234, 240 (1999) (suggesting that “when law enforcement agents seize property pursuant to warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return”). However, section 213 does mandate that the sneak-and-peek warrant set a time for the provision of notice “within a reasonable period of its execution,” which period the issuing court can extend for good cause. 18 U.S.C. § 3103a(b)(3).
6/ On April 29, 2003, the Attorney General reported that 1,228 applications were made to the FISA Court for either electronic surveillance or physical searches during calender year 2002. All of these applications were ultimately approved. See Report from John Ashcroft, Attorney General, to L. Ralph Mecham, Director, Administrative Office of the United States Courts
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writing to a series of 50 questions concerning the Department’s implementation of the statute.
While DOJ provided answers to these questions in two letters dated July 29 and August 26, it
deemed some of its answers to be classified, and thus provided them at first only to the House
Permanent Select Committee on Intelligence (“HPSCI”). (Letter from Daniel Bryant, Assistant
Attorney General to Congressman James Sensenbrenner, Jr., July 26, 2002.) Specifically, the
answers to six of these questions “required the disclosure of sensitive FISA operational
intelligence information,” and therefore were classified at the SECRET level.7/ (Def.’s Mot. for
Summ. J., ex. 4 [Letter from Daniel Bryant, Assistant Attorney General to Congressman Richard
A. Gephardt, Oct. 22, 2002].) While Chairman James Sensenbrenner of the House Judiciary
Committee ultimately received some of these classified answers, they were not (and have not
been) made available to the public. (Mem. in Support of Pls.’ Mot. for Summ. J. at 4 & n.5.)
(Apr. 29, 2003). This disclosure was made pursuant to 50 U.S.C. § 1807, which requires that such a report be provided in April of each year.
7/ The questions to which the classified answers were provided concerned the number of times that DOJ had used its new powers to obtain roving surveillance orders (questions 8 and 27), pen registers/trap and trace devices against U.S. persons (question 10), and tangible objects/business records in the context of terrorism investigations (questions 11-12). A final question (question 15) asked how many U.S. persons had been subject to new FISA surveillance orders since the enactment of the Patriot Act. (Letter from House Judiciary Committee to John Ashcroft, Attorney General, June 13, 2002.)
Interestingly, FISA itself requires that the Attorney General provide similar information to the Committee on a semiannual basis. Section 306 of FISA entitles the House and Senate Judiciary Committees to receive a report every six months setting forth the number of physical searches approved under FISA, the number denied, and the number that involved searches of U.S. persons. See 50 U.S.C. § 1826. Section 406 requires the Attorney General to provide a similar accounting of the total number of orders approving and denying the use of pen registers/trap and trace devices. See 50 U.S.C. § 1846(b). And section 502 of the statute mandates the same semiannual report with respect to the number of orders approved and denied for the production of tangible things under FISA. See 50 U.S.C. § 1862(b). These provisions also set forth more detailed disclosure requirements that the Attorney General must meet in order to keep HPSCI, as well as the corresponding Senate Select Committee on Intelligence, fully informed regarding DOJ’s use of its FISA tools.
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Plaintiffs’ FOIA request, which was filed in August 2002, represents an attempt to compel the Department to be more forthcoming. Three basic categories of information were sought. First, plaintiffs requested all records prepared or collected by DOJ in connection with the classified answers, some of which they believe were improperly classified. Second, they asked for policy directives and other guidance materials issued by DOJ regarding the use of certain surveillance techniques authorized by the Patriot Act. Third, and most importantly for this case, plaintiffs sought records containing aggregate statistical information revealing how often DOJ had used the Act’s new surveillance and search provisions: roving surveillance under section 206; pen registers/trap and trace devices under section 214; demands for production of tangible things under section 215; and sneak and peek warrants under section 213. (Mem. in Support of Pls.’ Mot. for Pre. Inj. at 12-15.)
Plaintiffs also requested expedited processing of their FOIA request, which defendant granted on September 3, 2002. On October 16, however, defendant indicated that it had not yet completed its search for responsive records, which led plaintiffs to file this action on October 24. They then filed a motion for a preliminary injunction on November 13, seeking to force DOJ to respond to their request immediately. After this Court held a hearing on November 26, both sides agreed that defendant would complete its processing by January 15, 2003. After DOJ sought and received several extensions of this deadline, it finished work on plaintiffs’ request on March 3. Three separate components of DOJ handled this request: the Office of Information and Privacy (“OIP”); the Office of Intelligence Policy and Review (“OIPR”); and the FBI.
OIP searched for and reviewed records located in the Department’s senior leadership offices. Ultimately, it identified 166 pages of responsive, nonpublic documents, and released 108 of these pages in their entirety. OIP released an additional 52 pages with excisions either
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pursuant to FOIA Exemptions 5, 6, and 7(C), or of material not responsive to plaintiffs’ request.8/
The remaining six pages were referred to OIPR for processing. (Second Decl. of Melanie Pustay
[Sec. Pustay Decl.] ¶¶ 9, 11.) In turn, OIPR, the component directly responsible for preparing
applications for electronic surveillance and physical searches under FISA, located 34 responsive
documents (68 pages), mostly e-mail messages discussing the Department’s responses to the
House Judiciary Committee’s questions. (Decl. of James A. Baker [Baker Decl.] ¶ 8.) Two of
these documents were released unredacted. Twenty-two additional documents were released
with excisions, pursuant to Exemptions 5 and 6. Eight remaining documents were withheld in
their entirety, based on Exemptions 1, 5, and 6. The two final documents were referred to OIP
and the FBI for their review and direct response. (Id. at ¶ 11.) Finally, the FBI released a total of
157 pages of documents, some of which were redacted. In addition, 50 full pages were withheld based on Exemptions 1, 2, 5, 7(C), and 7(E).9/ (Revised Second Decl. of Christine Kiefer [Kiefer
Decl.] ¶¶ 10-11.)
As noted, plaintiffs have now waived all challenges to withholdings under Exemptions 2,
8/ Exemption 6 prevents the disclosure of files which “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Similarly, Exemption 7(C) protects records complied for law enforcement purposes, the production of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id. at § 552(b)(7)(C). Plaintiffs have indicated that they do not challenge defendant’s withholdings pursuant to these exemptions. (Mem. in Supp. of Pls.’ Mot. for Summ. J. at 8 & n.8.)
9/ Exemption 2 exempts information “solely related to the internal personnel rules and practices of an agency,” while 7(E) protects law enforcement records that “would disclose techniques and procedures for law enforcement investigations and prosecutions.” 5 U.S.C. §§ 552(b)(2), (7)(E). Plaintiffs do not challenge the FBI’s withholdings, except insofar as the Bureau relies on Exemption 1 to withhold 14 pages of documents, and Exemption 5 to withhold an additional 50 pages (and portions of 10 more), but only insofar as these documents contain statistical information regarding the Bureau’s overall use of particular surveillance tools. (Mem. in Supp. of Pls.’ Mot. for Summ. J. at 9-10 & n.10.)
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6, and 7. In addition, plaintiffs have dropped their challenge to the adequacy of defendant’s searches. (Mem. in Supp. of Pls.’ Mot. for Summ. J. at 8-10 & nn.8-10.) As such, the only remaining issue in this case is whether OIP, OIPR, and the FBI properly invoked Exemptions 1 and 5 to justify the withholding of aggregate, statistical data concerning the extent to which DOJ has used its new powers under the Patriot Act to conduct particular forms of surveillance and searches. The universe of such documents is not vast. Under Exemption 1, the contested withholdings involve two full documents located by OIPR and portions of 14 documents located by the FBI. Under Exemption 5, plaintiffs object to the withholding of portions of 26 documents identified by OIP, six complete documents and portions of 18 more by OIPR, and 50 full pages, along with portions of 10 additional pages, by the FBI. It is to the merits of these challenges that the Court now turns.
ANALYSIS I. FOIA: General Principles and Standard of Review
FOIA was enacted in 1966 to implement a “general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (quoting S. Rep. No. 89-813 (1965)). Thus, an agency must promptly make available any records requested by members of the public, unless the agency can establish that the information is properly withheld under any of the nine exemptions set forth in the statute. See 5 U.S.C. § 552(b). These exemptions are exclusive, and should be narrowly construed. Rose, 425 U.S. at 361. When a challenge is made to an agency’s decision to withhold information, the burden of proof rests on the agency to sustain its decision, and the reviewing court is directed to “determine the matter de novo.” 5 U.S.C. § 552(a)(4)(B).
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At the same time, of course, it must be recognized that FOIA represents a carefully considered balance between the right of the public to know what their government is up to and the often compelling interest that the government maintains in keeping certain information private, whether to protect particular individuals or the national interest as a whole. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 152-53 (1989) (“The Act’s broad provisions favoring disclosure, coupled with the specific exemptions, reveal and present the ‘balance’ Congress has struck.”) As such, the exemptions must be given “meaningful reach and application.” Id. at 152. In a FOIA case, the agency generally meets its burden by providing affidavits describing the material withheld and the reasons that it fits within one or more of the exemptions. And, at least in the national security context, the reviewing court must give “substantial weight” to such affidavits. King v. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). In such cases, summary judgment may be granted based on an agency’s affidavits if they contain “reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980). II. Withholdings under Exemption 1
Exemption 1 is FOIA’s national security exemption. See Bonner v. Dep’t of State, 928 F.2d 1148, 1150 (D.C. Cir. 1991). It allows an agency to withhold materials “(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) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 5521(b)(1). While an agency’s declarations setting forth the reasons that information falls within this exemption are entitled to substantial weight, they must
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nevertheless afford the requester an ample opportunity to contest, and the Court to review, the soundness of the withholding. Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (observing that “deference is not equivalent to acquiescence”); Goldberg v. Dep’t of State, 818 F.2d 71, 76-77 (D.C. Cir. 1987) (noting that Exemption 1 does not relieve the courts of their “independent responsibility” to review the agency’s decision).
Therefore, to justify summary judgment, an agency affidavit invoking Exemption 1 must provide “detailed and specific” information demonstrating both why the material has been kept secret and why such secrecy is allowed by the terms of an existing executive order. Campbell, 164 F.3d at 30; King, 830 F.2d at 217. If the declarations provide the requisite specificity, however, and are neither contradicted by other record evidence nor contaminated by indications of bad faith, the reviewing court should not ordinarily second-guess the agency’s judgment. Instead, the court must recognize that the executive branch departments responsible for national security and national defense have unique insights and special expertise concerning the kind of disclosures that may be harmful. See Kirkorian v. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir. 1993); Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). In other words, while the Court is ultimately to make its own decision, that decision must take seriously the government’s predictions about the security implications of releasing particular information to the public, at least where those predictions are sufficiently detailed and do not bear any indicia of unreliability.
The executive order in effect in this case is Executive Order 12,958. OIPR concluded that two documents responsive to plaintiffs’ FOIA request should be classified pursuant to this Order. The declaration of James Baker, OIPR’s Counsel for Intelligence Policy, explains the reasoning behind this decision. The two withheld documents are: (1) the classified answers
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provided to HPSCI in response to the 50 questions posed by the Judiciary Committee, and (2) certain pages from the Attorney General’s Reports to Congress on FISA, upon which DOJ relied in preparing those answers. (Baker Decl. ¶ 15.) Section 1.5(c) of the Executive Order lists “intelligence activities (including special activities)” and “intelligence sources or methods” among the kinds information that should be considered for classification. In turn, section 1.2 requires classification of such information where a determination is made that unauthorized disclosure of the information “reasonably could be expected to result in damage to national the security.”10/ In his declaration, Baker explains that he carefully examined the two documents in question and concluded that their disclosure would have such an effect.
The contested documents “describe the frequency or manner of use of specific techniques authorized under FISA for use against clandestine intelligence and international terrorist activities.” (Id. at ¶ 16.) According to Baker, revealing this information would enable the potential targets of such surveillance “to conduct their intelligence or terrorist activities . . . more securely.” (Id. at ¶ 17.) Specifically, he continued, disclosing the number of times that DOJ has used its new “roving” surveillance authority could provide “critical information” about whether taking evasive action, such as changing telephones or e-mail accounts, would provide a safe harbor from FBI counterintelligence and counter-terrorism efforts. (Id.) Disclosing the number of U.S. persons who were the subject of FISA orders generally, or pen register/trap and trace devices more particularly, could provide an indication about whether and to what extent terrorist and foreign intelligence operations would be safer if they were to recruit such persons as their agents. (Id.) Finally, disclosing the number of FISA applications made for the production of
10/ In this context “national security means the national defense or foreign relations of the United States.” Exec. Order No. 12,958, § 1.1(a).
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tangible things could enable adversaries to discern whether and to what extent business records and other items in the possession of third parties offered a safe harbor from the FBI. (Id.)
While the FBI withheld a broader class of information under Exemption 1, plaintiffs contest the Bureau’s withholdings “only insofar as the records indicate that total number of times the FBI has used particular surveillance and investigatory authorities during a specified time period.” (Mem. in Support of Pls.’ Mot. for Summ. J. at 24.) Plaintiffs thus do not take issue with the refusal to turn over other responsive material, which contains more detailed information linked to particular field offices or particular FISA investigations. As such, their challenge implicates virtually the same information contained in the documents withheld by OIPR. In particular, the contested materials are: (1) a report listing the total number of pen registers issued to FBI agents since October 26, 2001; (2) a report listing the number of requests for business records under FISA during the same period; (3) handwritten information about the total number of National Security Letters (administrative subpoenas used by the FBI to obtain various kinds of records) authorized during specific time periods; and (4) a document indicating the number of times each investigatory tool authorized by the Patriot Act has been used by the FBI. (Def.’s Mot. for Summ. J. on Behalf of the FBI, Ex. 4 [Kiefer Narrative].)
The FBI’s justifications for relying on Exemption 1 echo those set forth by OIPR, although they are less specific. Indeed, for each the documents described above, the Bureau’s records management attorney offers exactly the same defense:
It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligencegathering capabilities of the activity or method. The release of this information
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could permit hostile governments to accurately evaluate the FBI’s counterintelligence capabilities within the specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as to make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI’s intelligence gathering capabilities and adversely impact the national defense. (Kiefer Narrative at 6, 8, 10, 64.) This boilerplate lacks the detail and specificity of the Baker Declaration submitted on behalf of OIPR. The analysis here has in no way been tailored to the particular surveillance tools about which plaintiffs seek information, and does not address the specific harm likely to flow from the release merely of aggregate statistical information about those tools. In this respect, the FBI largely recites conclusions, rather than explaining the basis for those conclusions. Cf. Goldberg, 818 F.2d at 78 (“Conclusory and generalized allegations of exemptions are not acceptable.”) (internal quotation omitted). Nevertheless, plaintiffs concede (and the Court agrees) that DOJ’s defense of its invocation of Exemption 1 – whether asserted by OIPR or by the FBI – must stand or fall as one. (Mem. in Supp. of Pls.’ Mot. for Summ. J. at 24-25.) Indeed, the materials sought to be withheld are essentially the same in both cases, and it would make little sense to dictate that identical information held by different components of the same department should be simultaneously revealed and concealed merely because one component has written a more persuasive declaration than the other. Therefore, the Court’s task is to determine whether the combined force of the affidavits submitted by OPIR and the FBI justifies the use of Exemption 1 to withhold the aggregate statistical information that each possesses. As already noted, the governing standard in this context is not especially onerous: the agency must demonstrate “a logical connection between
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the information and the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Abbots v. Nuclear Regulatory Comm’n, 766 F.2d 604, 606 (D.C. Cir. 1985) (internal quotations omitted). “The test is not whether the court personally agrees in full with the [agency’s] evaluation of the danger—rather, the issue is whether on the whole record the Agency’s judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in which the [agency] is expert and given by Congress a special role.” Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982).11/ Having carefully reviewed the declarations submitted by DOJ, the Court concludes that they satisfy these requirements. While plaintiffs’ arguments in favor of disclosure are not without force, they are ultimately insufficient to overcome the agency’s expert judgment that withholding the disputed information is authorized by the Executive Order because it is reasonably connected to the protection of national security.
Plaintiffs’ central claim is that the disclosure of the information they seek cannot plausibly be distinguished from the disclosure of similar information that is already required by FISA itself. As noted above, section 107 of FISA requires the Attorney General to issue an annual report to the Administrative Office of the United States Courts setting forth the “total number of applications made for orders and extension of orders approving electronic surveillance,” as well as the total number of such applications “either granted, modified, or denied.” 50 U.S.C. § 1807. According to plaintiffs, this fact undermines the Baker
11/ It should be noted that this “special deference” to the agency’s affidavits is unique to Exemption 1. See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 315 (D.C. Cir. 1988); Ctr for Nat’l Security Studies v. Dep’t of Justice, 215 F. Supp. 2d 94, 103 (D.D.C. 2002) (contrasting Exemption 1 cases with cases under other FOIA exemptions, where the government’s declarations are entitled to less deference).
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Declaration’s conclusion that withholding aggregate data regarding FISA surveillance and search provisions is necessary to protect national security. (Reply Mem. in Supp. of Pls.’ Mot. for Summ. J. at 4-5.) If one category of statistics can be disclosed without harm, plaintiffs contend, every similar category of information must be made available to the public as well.
The first response to this argument is that Congress itself has already made the very distinction that plaintiffs now contend cannot be made. Under FISA, much of the statistical information that plaintiffs now seek, which relates to the use of particular surveillance and search tools, including pen registers and demands for production of business records, is subject to its own disclosure regime, which is separate and distinct from that imposed by section 107. As described in footnote 7, supra, such information must be provided only to the relevant congressional oversight committees, not to the public at large. See 50 U.S.C. §§ 1846, 1852. In other words, after specifically considering this issue, Congress ultimately chose not to insist upon the full public disclosure of the statistics that defendant has withheld, while simultaneously requiring such disclosure for other, arguably more general, statistical data. At the very least, this clear congressional choice undermines plaintiffs’ claim that these two kinds of information cannot meaningfully be distinguished. In making its withholdings here, DOJ is therefore acting largely to maintain and defend a line that has previously been drawn by Congress.
Moreover, the existence of these separate disclosure channels suggests that section 107 was not intended to preclude the Attorney General from classifying statistical information not covered by that provision. Indeed, to use that requirement to compel the public disclosure of the information sought here would do violence not only to the limited language of section 107 itself, but also to the structure of FISA as a whole, which strikes a careful and considered
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balance between the need for public scrutiny of government surveillance activities and the need for operational secrecy in carrying out such surveillance. Thus, whatever assistance section 107 on its own might have provided to plaintiffs’ case is severely limited by Congress’ corresponding decision not to provide for the broad dissemination of the very data at issue here. Because this congressional balance is not lightly to be disturbed, the mere fact that FISA provides for the public disclosure of certain aggregate statistical data cannot mean that different, but arguably analogous, information must thereby automatically be disclosed under FOIA. Instead, the question must turn (as it always does) on whether the government has provided a specific and persuasive explanation of why such disclosures would be at odds with national security.
This is not to say that because the information plaintiffs seek is not available to them under FISA, they are necessarily precluded from obtaining it through FOIA. Rather, the point is that nothing in FISA either entitles them, explicitly or implicitly, to such information, or casts doubt on the reasonableness of defendant’s conclusion that these statistics must be kept classified in order to protect intelligence sources and methods. In this sense, plaintiffs’ invocation of section 107 is misplaced, and must not be allowed to distract attention from the fact that they have done little to challenge the Baker Declaration’s determination that the disclosure of the statistical information contained within the classified answers may reasonably be expected to compromise national security by frustrating the counterintelligence and counterterrorism purposes of FISA (as amended by the Patriot Act).
And on this crucial point, the Court is satisfied that defendant’s affidavits are sufficient to carry its burden. There is no basis in the record to dispel the government’s basic concerns about the damage that may be done by the release of the numerical information at issue here.
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Indeed, records that indicate how DOJ has apportioned its counterespionage resources, that reveal the relative frequency with which particular surveillance tools have been deployed, and that show how often U.S. persons have been targeted may undoubtedly prove useful to those who are the actual or potential target of such surveillance, and may thereby undermine the efficiency and effectiveness of such surveillance. That the public has a significant and entirely legitimate desire for this information simply does not, in an Exemption 1 case, alter the analysis. Defendant has provided an entirely reasonable explanation as to how national security may be jeopardized by the release of the information that plaintiffs seek. Because this account is undermined neither by contrary record evidence nor by any indication of agency bad faith, the Court is obliged to uphold DOJ’s withholding, notwithstanding plaintiffs’ compelling argument that the disclosure of this information will help promote democratic values and government accountability.
Plaintiffs make one further argument that the disputed information was improperly classified, and thus not protected by Exemption 1. They contend that because the Patriot Act shifted FISA’s focus away from counterintelligence to more routine law enforcement, defendant is now precluded from relying on section 1.5(c) of Executive Order 12,958, which allows classification only to protect intelligence activities, sources, and methods. While ingenious, this argument is ultimately unpersuasive. To be sure, the Patriot Act did make it easier for the government to obtain a FISA surveillance order for purposes of mounting a criminal prosecution. Under the previous version of FISA, before the government could obtain an order to conduct electronic surveillance or a physical search, it had to certify to the FISA court that “the purpose” of the surveillance or search was to obtain foreign intelligence information. The Patriot Act altered this standard, changing the operative language from “the purpose” to “a
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significant purposes.” Patriot Act, § 218, amending 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B). Thus, plaintiffs correctly point out that the amended FISA allows DOJ to obtain a surveillance or search order where its primary purpose in making the request is to gather evidence to initiate a criminal prosecution against the targeted foreign agent. See In re Sealed Case, 310 F.3d at 732 (“There is simply no question . . . that Congress was keenly aware that this amendment relaxed a requirement that the government show that its primary purpose was other than criminal prosecution.”).12/
However, it is clear that even after the Patriot Act, the government may take no action under FISA unless a “significant purpose” of the surveillance or search is to obtain foreign intelligence information. As such, every order approved under FISA, and thus accounted for in the statistics that defendant has classified here, necessarily involves the gathering of intelligence information as a non-trivial part of its purpose. All such orders thus fall logically within the ambit of the relevant provision of the Executive Order, and therefore within the protection of Exemption 1. This is simply not true of the Title III surveillance warrants to which plaintiffs seek to draw an analogy. See 18 U.S.C. § 2519 (setting forth the government’s broad disclosure obligations with respect to surveillance conducted for law enforcement purposes under Title III, 18 U.S.C. § 2510 et seq.). While it may be that a particular Title III warrant was obtained (in
12/ It should be noted, however, that even under the amended FISA, the government’s power to use the statute for general law enforcement purposes remains limited. In its first (and to date only) decision, the Foreign Intelligence Surveillance Court of Review rejected the argument that “the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime.” In re Sealed Case, 310 F.3d at 736. Thus, while the Court read the amended version of § 1804(a)(7)(B) to allow the government to obtain a FISA order where its primary purpose was to obtain evidence to prosecute a “foreign intelligence crime” (so long as that is not its sole purpose), the Court flatly rebuffed the suggestion that FISA process may “be used as a device to investigate wholly unrelated ordinary crimes.” Id. at 735-36.
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part) to obtain intelligence information, statistics listing only the total number of Title III warrants issued during a particular period would reveal little, if anything, about the nature of the government’s intelligence-related operations. This is so because there is simply no necessary connection between such warrants and covert intelligence activity, and therefore no indication as to how many of a given set of Title III warrants may have had such a link. In the FISA context, by contrast, even aggregate data is revealing, because it is a mandatory condition of every surveillance order that the government’s application directly implicate foreign intelligence. Because nothing in the Patriot Act alters this fact, its provisions cast no doubt whatsoever on the reasonableness of DOJ’s decision to classify the information at issue here.
Accordingly, the Court concludes that defendant’s explanation of why it has withheld aggregate statistical information revealing the number of times it used particular Patriot Act surveillance and search tools is sufficiently detailed and persuasive to satisfy the standards for protecting agency records pursuant to FOIA Exemption 1.
III. Withholdings under Exemption 5 Exemption 5 allows an agency to withhold memoranda or letters that would be
protected from discovery in routine civil litigation. See 5 U.S.C. § 552(b)(5). This provision has been interpreted to incorporate the deliberative process privilege, which shields from disclosure documents that reflect or reveal the deliberations in which an agency engaged before arriving at a decision on a particular policy question. See Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002). The critical question in this context is whether “disclosure of the materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its
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functions.” Formaldehyde Instit. v. Dep’t of Heath and Human Servs., 889 F.2d 1118, 1121-22 (D.C. Cir. 1989) (quoting Dudman Communications Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)). To receive protection, therefore, the materials must be both predecisional and deliberative. See Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993).
Purely factual information is generally considered non-deliberative, and is therefore not typically covered by this exemption. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 857 (D.C. Cir. 1980). Such information must therefore be disclosed even when contained in an otherwise protected document, unless the factual material is “inextricably intertwined” with, or incapable of being segregated from, the exempt material. See Army Times v. Dep’t of the Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993) (“Exemption 5 applies only to the deliberative portion of a document and not to any purely factual, non-exempt information the document contains. Non-exempt information must be disclosed if it is reasonably segregable from exempt portions of the record, and the agency bears the burden of showing that no such segregable information exists.”) (internal quotations omitted); Brinton v. Dep’t of State, 636 F.2d 600, 605-06 (D.C. Cir. 1980).
Here, while defendant has asserted that Exemption 5 applies to a number of documents, plaintiffs challenge these withholdings only insofar as DOJ has refused to release “segregable factual information,” i.e. aggregate statistical data contained within predecisional documents, but separate and distinct from the deliberative portions of those documents. (Mem. in Supp. of Pls.’ Mot. for Summ. J. at 26 n.18; Reply Mem. in Supp. of Pls.’ Mot. for Summ. J. at 10.) To evaluate this objection, the Court has had to look carefully at withholdings made by each DOJ component involved in this case. First, with respect to OIP, it is now clear that the material at
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issue does not contain the sort of information that plaintiffs seek. The original declaration submitted by OIP asserted that intra-agency e-mails withheld under Exemption 5 addressed “which Department components should be tasked with working on particular questions, what the answers might consist of, and what language should be used in the response letter.” (Sec. Pustay Decl. ¶ 12 (emphasis added).) While this language is perhaps ambiguous, a subsequent OIP declaration clarifies that in fact none of the e-mails contain “statistical information regarding the use of the various provisions of the Patriot Act.” (Third Decl. of Melanie Pustay ¶ 4.) The Court accepts this representation, which effectively undermines plaintiffs’ sole objection to OIP’s assertion of Exemption 5.
The situation for OIPR and the FBI is more complicated because it was not clear from the original record whether any of the documents withheld by these components actually contain factual information of the sort sought by plaintiffs. First, OIPR’s declaration says only that certain e-mails discuss “what approach should be taken in responding to the [House Judiciary Committee’s] questions.” (Baker Decl. ¶ 24.) While plaintiffs believe that this language suggests the presence of statistics, this simply could not be determined from defendant’s papers. Similarly, one of the declarations submitted by the FBI indicates that one document (drafted by Charles Steele, the Bureau’s Deputy General Counsel) includes “a collection of statistics, thoughts, idea and proposals” generated in response to Congress’ request for information on the implementation of the Patriot Act. (Decl. of Charles Steele [Steele Decl.] ¶ 9.) However, another FBI declaration, describing the same document, makes no mention of statistics, reporting only that the Steele’s memorandum “is a collection of thoughts, discussions, ideas, proposals, and proposed recommendations. . .” (Kiefer Decl. ¶ 38.) In order to resolve these conundrums, the Court requested that DOJ provide these disputed OIPR and FBI
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documents for in camera review. See 5 U.S.C. § 552(a)(4)(B). Now that defendant has done so, it is clear that its withholdings are proper. Indeed, the
documents reveal that plaintiffs’ Exemption 5 attack “thrusts largely at lions of [its] own imagining.” Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 708 (1994). The Court has reviewed the OIPR e-mails (a total of 29 pages), and determined that they contain no factual or statistical information whatsoever. Instead, these documents consist of paradigmatic Exemption 5 material: intra-agency conversations concerning the best ways to respond to the Judiciary Committee’s questions, including suggestions for stylistic changes in proposed language, exchanges about the meaning and scope of certain questions posed by Congress, and discussions of how to provide responsive answers in a way that would not compromise national security. Refusing to disclose this entirely deliberative information is entirely appropriate, and plaintiffs do not suggest otherwise. With respect to the FBI document, while it does contain a few notations that relate to the frequency with which particular Patriot Act provisions have been used, the Bureau has in fact classified this information, and withheld it pursuant to Exemption 1.13/ The Court has already approved this withholding, which moots plaintiffs’ Exemption 5 argument. As such, in camera review has demonstrated that there is simply no factual information that defendant has tried to withhold under Exemption 5, and thus no substance to plaintiffs’ challenge under that provision.
13/ Having examined this document, which consists of a collection of handwritten notes scribbled on a copy of the Patriot Act’s table of contents, it is clear that this is in fact the same document that occupies pages 77 and 78 of FBI Exhibit 1. In the Kiefer Narrative, the Bureau justifies its withholding of the statistical information contained in these pages under Exemption 1, which is consistent with the FOIA annotations that appear on those portions of the document. (Keifer Narrative at 63-64.)
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CONCLUSION For the reasons given above, the Court holds that DOJ properly invoked Exemption 1 to withhold aggregate statistical data concerning its use of specific provisions of the Patriot Act, and that plaintiffs’ limited challenge based on Exemption 5 is, on the facts presented here, without merit. Defendant’s motions for summary judgment will therefore be granted.

DATE: May 19, 2003

_______________________ ELLEN SEGAL HUVELLE United States District Judge

25

 
 03/84/:003

04:24 21:25432629

ACUJ

Case 1:02-cv-02077-ESH Document 20-3 Filed 03/07/03 Page 1 of 2

TECHNOLOGY & LIBERTY PROGRAM

J-3meel Jaffer
$r(lff Arror."''gy

National Hesdquo<~rters i 25 SmM Street, Ngw York. NY 10004-2400

WWW.S1Ciu.org

March 4, 2003
BY FACSIMILE: 202 616 8470
Marcia Berman U.S. Department of Justice Civil Division, Federal Programs, Room 7204 20 Massachusetts Ave., NW Washington, DC 20530
Re: ACLU eta/. v. DOJ, Civil Action No. 02-2077 (ESH)
Dear Ms. Berman,
In connection with the above-captioned case, we received yesterday from your
office the Declaration of Charles M. Steele and the Second Declaration of Christine Kiefer, together with accompanying Exhibits. We have reviewed these documents and are now able to further narrow the issues to be litigated.
We do not intend to challenge the adequacy of the FBI's search. We intend to challenge the FBI's withholding of documents as indicated below.
Exhibit I
Exhibit I includes 29 pages (numbered 1-29) released to us by letter dated February 21, 2003. It is our understanding that Exhibit I also includes 50 pages (numbered 30-79) that have not been. released to us.
With respect to Exhibit t we will challenge the invocation of Exemption (b)(\) on
pages 1-5. We will not challenge any Exemption relied on in pages 6-29. We will challenge all Exemptions relied on in pages 30-79, except (i) we will not challenge any invocation of Exemption (b)(2)-l or (b)(7)(C)-1; and (ii) we will not challenge the invocation of Exemption (b)(l) on pages 31. 33, 37. 39, 40-41, 42-43, 45, 46, 47, 49, 51, 52, 53. 54, 55, 56,58-59,68,70, 71, 72, 73, 75, 76. and 79. In waiving our right to challenge the FBI's reliance on Exemptions (b)(2)-1 and (b)(7)(C)-l. we are of course assuming that the material excised pursuant to these Exemptions consists solely of telephone and pager numbers or of names and identifying information of FBI employees. See Second Declaration of Christine Kiefer, at p. 8.

N.ndin.o St~o.<;Mn P~esioer>r

Anthony D. Romero EKncvVvfJ Oi~c-tor

Exhibit A Civil Action No. 02-2077(ESH)

Kenneth B. Clark C/">a/r. NaliD(13! Aovl!:orr Cc•Jncit

Richard Zack'!l T:rsSSI..ifGr

9-- @

83/04/2083 84:24

2125432623

ACLU

PA,3E 03/03

Case 1:02-cv-02077-ESH Document 20-3 Filed 03/07/03 Page 2 of 2

Exhibit II
Exhibit II consists of24 pages released by letter dated November 14, 2002; 14 pages released by letter dated January 16, 2003; and 41 pages released by letter dated January 31, 2003.
We will not challenge any Exemption relied on in Exhibit II, except (i) we will challenge the FBI's reliance on Exemption (b)(5) on pages 36 and 37; (ii) we will challenge its reliance on Exemption (b)(l) on pages 38-43; and (iii) we will challenge all Exemptions relied on in pages 54-57 and 71-74.
Exhibit III
Exhibit III consists of 1 page released on March 3, 2003. The FBI hasnot relied ·on any Exemption \\-ith respect to this document.
Please feel free to contact me if you have questions about thi.s letter.

cc: David Sobel

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 1 of 33
EXHIBIT I

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 2 of 33
Documents released by letter dated February 21, 2003

OI'C'A-J(, (X-\1-91\) Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 3 of 33
U.S. Department oi .. stice

Federal Bureau of Investigation 935 Pcnnsylv<mia Ave., N.\V

Ms. Ann Beeson

FEB 21 2003 Washington, D.C. 20535-0001

American Civil Liberties Union Foundation

DOJ RESPONSE TO 6/13/02

125 Broad Street

Subject of Request· LETTER !'ROM CONGRESSMEN

New York, New York 10004-2400

FOlPA No 966750-,l /!90-

Dear Requester:
Enclosed arc copies of docnHtcnts rrom FBI records. Excisions have been made to protect intOnnation exempt from disclosure pursuant to Title 5, United States Code, Section 552 (Freedom of Infonnation Act) and/or Section 552a (Privac:v· Act). ln addition, \\'here cxcisiOIIS were made. the appropriate exempting subsections han~ been cited opposite the deletions. Where pages han: been withheld in their entirety. a deleted page infonnation sheet has been substituted showing the reasons or basis for the deletion. The subsections cited for withholding information from the enclosed docurncnts arc marked below:

Section 551

Section 552a

IZJ (b)(l) IZJ (b )(2)
0 (b)(3)
0 (b)(4) i!jJ (b)(5) 0 (b)l6)

0 (b)(7)(A) 0 (b)( 7 )(B)
1ZJ (b)(?)( C)
0 (b)(7)(D) 0 (b )(7)(E) 0 (b)(7)(F) 0 (b )(8) 0 (b )(9)

0 (d)(5)
[J (iJ(2)
[J (k)(l I 0 (k)(2) 0 (kl(l I 0 (k)(41 0 (k)(5) 0 (k)(6) 0 (k)(7)

(Sec Fomr OPCA I (,a, enclosed, for an explanation of these exemptions.)

Pursuant to your request. __]__5}___ being released

pages(s) were reviewed and 2 9

_ page( s) an.'

During the rcvic\\ of material pcriinrnt to thr subjrct of your rrqnf'sL ctncumcnt~ were located which

0 originated with ;.mother Govemmcnt agency(ics). These docuruents were referred to that agcncy(ics) En review and direct rc:~ponsc to you

D contain infOnnation furuished by ;mother Govcmmeut agency(ics). You will be advised by the FBI as to the releasability of this information following our consultation with the other agency( ics J

I - EPIC - Attention David SobeL Es(juin.'

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 4 of 33

/ZI If you desire, you may appeal auy denials contained herein. Appeals should be directed in
writing to the Co-Director, O!ficc of Infomration and Privacy, U.S. Department of Justice, Flag Building, Suite 570, Washington, D.C. 20530-0001 within sixty days from receipt of !Iris letter. Th'~ envelope and the lener should be clearly marked "Freedom of Infonnation Appear~ or "Infom1ation AppeaL" Please cite the FOIPA number- assigned to your request so that it may be easily identified.

0 The enclosed material is from the main investigative file(s) in which the subject of your request was the subject of the investigation. There are additional references to the subjcct(s) of your request in files relating to other individuals, organizations, events or activities. These additional mentions or references have not been reviewed to determine if, in fact, they are identifiable with the subjcct(s) of your request. Our experience has shmvn that such references are frequently similar to information contained in the processed main file(s). We witl process these references if you now make a specific request for them. However, because of a significant increase in FOIPA requests and an expanding backlog, we have given priority to the processing of main investigative files and can only complete the processing of these additional references
as time and resources pcnnit.

D Sec additional infOnnation which follows.

Sincerely yours,

t

~~~fJ<ch--~D_j

Freedom of lnfomiationPrivacy Acts Section
Records Management Division

Enclosures (2 )

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 5 of 33

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r1AR-05-200C3 as0e9:13:052-cv-0207F7O-IEPSA HD l SDCLoOcSuUmREen3t 20-4

Filed 03/07/03

202 220
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Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 7 of 33

Pen Registers since 10/2612001

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Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 9 of 33
Business Record Order Requests Since 10126/2001

m..· ClASSIFIED DECISIONS FINAUZEO

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DB~IYAfT-O.E'E:/PAAF.·ERd·RTt·MkIE#N8·T..WAR.JEQ.-·V<lI:E.!WVl.-1C~/.·01~1··7.M6I.TfJTECE.

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Precedence: IMMEDIATE

Date:

To: • /

All Divisions

Attn: ADIC, SAC CDC

From:

Office of the NSLU/NSLB,

General Counsel Room 7975

Contact: National Security Law Unit,

Approved By:

Mueller Robert S III Pickard Thomas J Parkinson Larry R
b1C..,/'" I

10/26/2001

Drafted By:

ta1Ct' \

Case ID #: 66F-HQ-A1247863 (None)

Title: NEW LEGISLATION NRAETVIIOSNIOANLSSETCOUFRCITIY/ITLETLTEGERASL AUTHORITIES

Synopsis: Summarizes relating to NSLs, and

recent changes to FCI/IT describes implementation

legal authorities procedures_

Details:

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. Gene~al SEM~ . '

To:
Re:

Case 1:02-cv-02077-ESH Document 20-4 A66lFl -HDQiv-Ais1i2c47863F, ro1m0:/26O/2f0f0ic1e of

Filed 03/07/03 Page 11 of 33

the

Counsel

~~~

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..

Of~-U'Gen ToC: asAe l1l:0D2-icvvi-0s2j 0771-ESFHromD:ocument 20-4
Re: 66F-HQ-A12~tB63, 10/26/2001

Filed 03/07/03 Page 12 of 33 .1 Counsel

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Changes in Statutory Language

asthntaedntudfteoellesltoigwoWonsvhs.eartinsfinogglliovNweSnsLsaf. irresAtt

he actual changes i "redlined" version . A clear copy of

n the three showing additions the new version

1.

Electronic Communications Privacy Act (ECPA)

u.s.c. § 2709: (S. 1510 Sec. 506)

3

To:CaAsell1:0D2i-vcvi-s0i2, 077-EFSrHom:Document 20-4 Re: 66F-HQ-A1247863, 10/26/2001

Filed 03/07/03 Page 13 of 33 .l Counsel

"Redlined" Text Key:

Retuo oed text:

§ 2709. Counterintelligence
transactional records

access

to

telephone toll
. -·.. ~.

and

lo>t
I I

(a)

a ssDueurbtvysicctroei bpperrrooivvniifddoeerr.m- -&aAthiaowlnli raceonmodrptloeyll'lWe.cbi~thiol nl iincrqe qc oruemecmsotur dfnosi cra t i o n

Dsrinueifcbrooesrrecmdctostairtoii-ononnfi,(tbths)oercouFefsletet_dhocedtiryrsa-olosneBriccuptroiceiooasSnmu_.meosSufinoIincn_·avtnieuosindteigtrbaaYtniotshnaecutinodnear l

(b)

Required certification.--The Director of the Federal

of

or h;ia <:l.esignee in

ill request the naiite,

length of service,

and local and lonq

toll billing records

,Qo\~osfs_±iag$nt_:p~O~e-:rI-I:stoJ;ilrn:-!_,i~o~(-e_r-ept-e.-~fn'r;tiliiftiOyct,e·r_it~f;~l~.~ft'.>~i_.ete8<!s*~:i:i4rn5-e-c;w:@#t:to~iL~t:i~Pnlro,gt~r\~tloh'--i­tshe

wire or ~~~9troni9

1B91), and
4
Sf~

0~~~ Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 14 of 33

To: All Divisic From:
Re: 66F-HQ-A1247863, 10/26/2001

Gene:...~~.._ Counsel

(2)

request the of a person

name, address, and length or entity if the Director

of service (or his

•

a_~~hO~!;f¥4 f()J:~;i~~t,_ ,
irtd,t;S-tig~_tioti,. ftitd

cotiitte

t

:in

tei

li

y

ence

an

oogf(irBfaVlc:estbi_th·tlt,-ge,c~t:rk{U-et-:etpp.2stbrtl.o«a_~ov~taleitwdqseieptO~rc_t,_cbbeeiiex~fl_letitipdt-eC~~itatiline~tld-tdJc~utt_lttla,<l-utOr-itt:tticjnect__Ja"c"=iifotl..~Ma•4.~~~;b~~u~;lo-~<-u~f-Oi'-i~C-t~~_-l~hdf~t-:aettciSptoesrenrvs1ocnes

(Remainder of statute unchanged!
New Version of lB u;s.c. § 2709 (without redlining)

§ 2709. Counterintelligence
transactional records

access

to

telephone

toll

and

s.

/0

. .

~~u· . Case 1:02-cv-02077-ESH Docume... n.t.....2~ 0-4 Filed 03/07/03 Page 15 of 33

To: Re:

All Divisic

From: Office

66F-HQ-A1247863, 10/26/2001

of

the

GeneLal

Counsel

(a)

Duty to provide.--A wire or electronic communication

service provider shall comply with a request for

subscriber information and toll billing records

information, or electronic communication transactional

records in its custody or possession made by the

Director of the Federal Bureau of Investigation under

subsection (b) of this section.

(b)

Required certification.--The Director of the federal

Bureau of Investigation, or his designee in a position

not lower than Deputy Assistant Director at Bureau

headquarters or a Special Agent in Charge in a Bureau

field office designated by the Director, may--

(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records souqht are relevant to an authorized investigation to protect aqainst international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment of the Constitution of the United States; and

(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communicati~n service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment of the Constitution of the United States.

(Remainder unchanged)

2.

Right to Financial Privacy Act

"Redlined" version of 12 U.S .c. § 3414 (a) (5)

II

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 16 of 33

To: Re:

All Divisl. .s From: o S M " G e n e...al 66F-HQ-Al247B63, 10/26/2001

Counsel

(5) (A)

Financial agents th

instit ereof,

utions, and officer shall comply with a

s

, r

employees, equest for

and a

cust.otn.er' s or entity's financial records
to this subsection by the Federal Bureau

made
of

pursuant

Investigation of

when

the

Director

of

the

Federal

Bureau

are specific: a.....l tt,~.;.Lieulai:Jle belielle that t:he customer: o:r:: so~yhl is a fo:t:eiqtt powe:r: or

facts g±vutg reason to eulit}l whoso records e:Le an agent of a fo:r:eiyn

po~oe:t: as defined in section 1891 of 'f'itle sa.

(Remainder unchanged)

New version of 12 U.S.C. § 3414(a) (5)

( 5) (A)

Financial agents the

institution reof, shall

s, and office comply with

rs, employees, a request for

and a

customer's or entity's financial records to this subsection by the Federal Bureau

made of

pursuant

spBBcoIunoefuucvrrrshIeetienaaitsirfuuvtoeiieecnghfsosieaterniatdgliidodonsaqtntuiwaoloaorwfrrwenfhititeeecsinrr(noesoguttrhhdogatetehrohnst aeiDgftDhionSDereprpaeliet.crlef!cfe:to:Ydiolcnr;rat1eaboli\ynogrsAcf'sntsigihatsehedltnaeetDisnniiFtignsrenDetdiCecetiethruroeaatricrli)ngot oeBnaruirnatehat aau t

counterintelligence purposes to protect against

boaUinfacntstietiithresvendioatCiSfteitoosaann,tcseattpsilivrtoputievettiirrioerdsoonserndipostirfmhsotathenotecorstteUucdcclnahoibnnteaydddnuetcshSittneeitndvaefteesisrsoitns.ilgettealylatlmiioogennnednmothcfeeenat

(Remainder unchanged)

7
/~

ShdiJ"JP . To:
Re:

CaA6s6elFl1-:HD0~2Q. v--c~A.vs-1~0.2c24077876-3EF,SroH1m0:/D2o6cO/2uf0mf0e~1nct 2t0(-4t~FeileGde0n3e/.07/03CoPuangseel17

of

33

3.

Fair Credit Reporting Act

"Redlined" Version of 15 U.S.C. § 16Blu

§ 16Blu. Disclosures to FBI for counterintel~iqence purposes

{a)

Identity of financial institutions

Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer reportinq aqency shall furnish to the Federal Bureau of Investigation the names and addresses of all financial institutions {as that term is defined in section 3401 of Title 12) at which a consumer maintains or has maintained an account, to the. extent that information is in the files of the aqency, when presented with a written request for that information, siqned by the Director of the Federal Bureau of

or the Director's desiqnee may make such a certification only if the ae•~·qn•ee has determined

ali authorized foteigxt cottntet:ihtelligencc iw~estlgation, and {2) there aLe specific and atlicttlable facts yi"tJi:ag LOUSOtl to beiietiC that thO: COhSWltCL (ili) is a foreign poc4CL (as defined in section 1991 of Title 58) or a person who is not a United States person (as defined in: such Section 1881 of title 59) and is au official of a foco:ign po"et:; ox:
8
13

Of~~~l[ Gene~~l Case 1:02-cv-02077-ESH Document 20-4 File1d 03/07/03 Page 18 of 33

To: All Divisic • From: Re: 66F-HQ-A1247863, 10/26/2001

Counsel

{B) is au agent·af a foteigu power and is

cng:agiug or has engaged in. au act of

iuteruat:ioual te_:trciriista- (as in sectiOn t99l(Ct _'Of 'fiUe

that bet«t: i:s defined S9] ot::'· Cl$1tdastine

iutelli;;;ienC# activities_ t·ltat itnoi:ue or nay

· iuvolue: a violation H'llitcid: -BLab!$.

of

cxim:i::nal

sta::tutcs

of

the

(b)

Identifying information

Notwithstandinq the provisions of section 1661b of

this title a consumer

or Sti.Y othi!r provision reporting o.qency shall

of this fllrnish

S\lbchapter, identifyinq

informati addJ:ess,

on respecting fo.t:Wir addre·s

a .coJ:IsUlller, ses, places

limite.cl t? name, of employment,

former

of employment, to the Fed~J'2a1

when presented With a written

(ll

;f,,· Eitt,;;r¢l:{:~i~~5:*t'e~_?-;i-ef:}qt;,i:n:~b,o~e~p____oeLb_tOwf-to-er~_s*ilt:-tf.titqbe4._4,<e;ts~ri·o.rd~I~t1(_a!;::¢ifti:ygfib,t,uret__id·~c:pzl:rioigl.i~ot¢_tlie:i;~.0~c~1.i6;;_o8:lt:::_-:«t~<.·&¢';>ou'-iu•ubltg:C·lEl+t{l:¥±Cltt:fr;e.:o:ub.>t·ePt;:'e,- a

'l'il:le SBI •

(c)

Court order for disclosure of c<:lnstijl\"'r rep9rts

Notwithstanding ·section other provision of this writing by the Director

16tllb of thB title or any subchapter, if reqUested in of the Federal Bureau of

Investigation, or a designee of the Director fit~

9

oSJIIfrll Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 19 of 33

10/26/20':r~ TO: All Divisit

From:

Re: 66F-HQ-Al24"1863,

Gene " Counsel

court may

an

reporting agency to

Federal Bureau of Inve~tiqat:i~n,

(1) the couswttel: zepot:L is nccessacy fo:s: the couduet: of an atttho:t:i&ed fo:tcign eountet:iut:clligcncc inbcstigation, attd
(2) thet:c a:t:c specific and ttt:tictdablc facts 91:V1:ng Leason to belie'tiO that the eoust:ttnoz whoso eonswnet: repot:L xs sought (A) is au agent of a fo:teign po'l!llet:, attd (Bl 1:a engaging or has engaged in att act of iuLcutational tct:r:orism (as that term is defined

The terms of an order issued under this subsection shall nat disclose that the order is issued far purposes of a caunterintelligenC:::e investigation.

(Remainder unchanged)

New Version of 15 U.s.c. § 16Bl(ul

§ 168lu. Disclosures to FBI for counterintelligence purposes

(a)

Identity of financial institutions

Notwithstanding section 1681b of this title or any other proVision of this subchapter, a consumer reporting aqency shall furnish to the Federal Bureau of Investiqation the names and addresses of all

IS

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 20 of 33
To: Re:

financial institutions (as that term is defined in

section 3401 of Title 12) at which a consumer·

maintains or ~s maintained an account, to the extent

that infor presented signed by

mation is in the files of the agency, when with a written request ·for that information, the Director of the Federal Bureau of

Investigation, or the Director's designee in a

position.not lower than Deputy Assistant Director at

Bureau headquarters or a Sgeci Bureau field office designated certifies compliance with this or the Director's designee may

al Agent in Charge in a by the Director, which section. The Director make such a

certification only if the Director designee has determined in writing,

or the that

Dir such

e

cto

r's

information is sought for the conduct of an authorized

investigation to protect against international

terrorism or clandestine intelligence activities,

provided that such an investigation of a United States

person is nat conducted solely on the basis of

activities protected by the first amendment of the

Constitution of the United States.

(b)

Identifying information

Notwithstanding the provisions of section 16Blb of

this title or any other provision of this subchapter,

a consumer reporting agency shall furnish identifying

information respecting a consumer, limited to name,

cpBBaIsfonideouugrvdrrrsmneeteireaaitesefiduurtsoiisegnhbpf, siyaeleanaftolicctdoodhroeqtmnemsuoleapowoDrfrlwffhitiaiaeeercnendreremsccdepttprhdoorlewaeeorrsnssyis.aoetmelhDn:rsegSt,ennptetpthhedpa,uceitl.tlesawyt:adoDc-ibsAtet"iuyhstrsAhbesteaosgcihefsetewFctnoaetterrrDind'ioristteiinnptrredlD.eaonCeclyishtmrToiBreageherrcunneg,qtrteeoue,weareiuohsnairitnco,thafa

Director certifica

or the Direc tion only if

tor's the

designee may make such a Director or the Director's

designee has determined in writing that such

information is sought for the conduct of investigation to protect against internat

an author ional

ize

d

terrorism or clandestine intelligence activities,

provided that person is not

such an investigation of a United conducted solely on the basis of

States

activities protected by the first amendment of the

Constitution of the United states.

(c)

Court order for disclosure of consumer reports

11

--

Case 1:02-cv-02077-ESH Document 20-4

To: All Divisi~

From:

Re: 66F-HQ-A1247863, 10/26/20

Filed 03/07/03 Page 21 of 33 Gene. .1 Counsel

Notwithstanding other provision

section of this

1681b of this title or any subchapter, if requested in

writing by the Director of the Federal Bureau of

Investigation, or a position not_ lower

designee ef the than Oeputy Assi

Director in a stant Director

Bureau headquarters or a Special_Aqent in Charge i Bureau field office designated by the Director, a

a n

t a

court may issue an order ex reporting agency to l;urnish Federal Bureau of Investigat

parte directing a consumer a consumer report to the ion, upon a_ showing in

camera that the report is sought for the conduct authorized investigation to protect against

of

an

oUboainaffcntstieatiithrnsevnediooatCiSrfteditoosaaenn,ctrseattpisilisvrtsoputiuevetteriirioerdsdoonserundiponsitdrfmshoetatrheontectrohstteuUcisdcclnahoinbsntauyeddndbuetscshSiettneeictndvatiefteoseisnroistnsi.lgestteahlyTlatalmihliooeglennnentdneomtorhcftmeeenast .

disclose that the o~der is issued for
counterintelligence investigation.

pUrposes

of

a

(Remainder unchanged)

Questions and Additional Information

phaadovttsdaptiie:tlldia/o3bno0ln,e.1-mTtt0hoh0aee,ta9enNN9rsSia.wLa1tUile8osr/FnoqrBageulI lceaSI/snntetiitscnorlugaunrns/itetooyatlr;>wLtohtauehwetbrosnUtuihetnwgeiihs,tl

(202-324-3951) is legislation. In egislation will be which can be found the OGC page.

12
J7

" ."

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 22 of 33

~i~;·~ic~riRE!:e To: All Divisi< From:
f!S( Re: 66F-HQ-Al24't863, 10/2G/200l

. Counsel

LEAD (s):

Set Lead 1: (Adm)

ALL RECEIVING OFFICES

arid

to

Disseminate other division

to personnel personnel as

involved in FCI/IT appropriate •

operations

••

~...13..

SE~t'.

/~

'

tRe~ .. os~-2000) i

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 23 of 33 FEDERAL Ei"-~~EA.U OF INVESTIGATION

Precedence: IMMEDIATE To: All Divisions

Attn:

From: Office of the General Counsel Investigative Law Unit, Room 7326 Contact: Investigative Law Unit,

Approved By:

Parkinson Larry R!

Date: 0611 9/02 Assistant Director; SAC; Legat CDC
b.;t- '

Drafted Case ID #: 66F-HQ- 1085160(Pending)-57

b1G-I
.~ b1C- \

Title:

NEW LEGISLATION PATRIOT ACT OF 2001 PROVISIONS ADDRESSING INVESTIGATIVE ISSUES

.hSFiyBgnIholiipngvshietssi:ntiggTapotirosounvpsis.piloenms eonfttghueidUaSnAcePpAreTvRioIuOsTlyApcrot voifd2e0d0oInwthheicUh SaAre

PATRIOT ACT of200I by of the most immediate interest

to

Reference:

66F-HQ-Al247863 Serial 70 66F-HQ-Al247863 Serial 71 66F-HQ-AI323588 Serial 364

Details: Background aprPevrrfoaoevivrliraidedbedilndetgogtoAuaistpdhptaehrnOoeFcnpBe"rUOIit.oaSctetOtAhoTvebPoeefArorietlT2lhsd6ReR,oIl2eOanq0sTtut0hisIAire,sevctdAehfrte'coaotPlIrimrnn"etPostehinardectterhefnipsoot,trtsmtaAhingecodntOfe"O)defbf-wtimshctheeariuic"olchsUft, etnTEhnieeCthirnasrG,ongercaniaensensmdrdamplASraCetcnrsteoyenounignftnats2vhte0ieelo0snn(tiIOisn"g/Ggta(rtoaCAivti)hnmeeihnetraowrgsio.cilsaseby

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 24 of 33 .•To: All Divisions From: i. ce of the General Counsel
Re: 66F-HQ-1085160, 06/19/2002

A2A0cm0t;1o1,negtwnttohitesleeddpoac"ruNamtEeeWEntCsLspEprGorveIiSpdaLer_AeddTaIbrOeyNaO,dGeRCtEa'isVleNIdSaIstOieocNntiaSolnTS-ObecyuF-srCeitIcy/tIiLToanLwaEnUGanlAyistL,isCAooUfuTcnesHretOladiRnaItpTerIdoEvOSisc,itoonbsero2f6th, e

'

FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)" and "NE~ LEGISLATION,

REVISIONS TO FBI/IT LEGAL AUTHORITIES, NATIONAL SECURITY LETTERS"; and an

EC prepared by OGC's Legal Forfeiture Unit, dated

tJtohaencuPoanartsyroiolIitId,Aa2tce0t i0on2tf,ogeronentaietteldesodt ci"unAtmeSreeSnsEtt tTthoeFFOgBnRIidFinaEovIceTesUtpigRraeEtviiMvoenAesfTlyfToprEtrsRo.v."ideTdh ea npdurtopohsiegholfigthhits tchoomsempuronviciasitoionns

is of

will · apsmTatLaioydnrndhaoopmdvddiuvresrereneewissessdstcsoieaoisesoogscfefernmattidsiiihsntnnopi,itegvvtnnhreieeeiAnenodmshftdtbpeofoeipetarTgotnraoohdtmalhsiersveltiittmaiviosaaiEostneoiieniEsComotngistCngnhc.tueinshesasidhSdihanwaofaaaenaifdsnhctocogrlaiiFtbtcreyncihneeeisohgneimtennlianmypfnetnierInnboitcoInnhatrdi,vidoabcenioMiflerkecsYncedAeiiorfaeao,niotnnsldnmoareetdnsmtEiyisho,-tenuChTecwatLawmenoenslnadmrodUmasur,irtonionnnakanordtdttirsgrihuotieset.zcetohmrtdeerirhfeSsnenSsrrcAagereeoarttce,efciaetmmtgohittisoiearioeoneiegnsrnncfvod'haw2ateiIlalifl0nisIoibstgIeltg0nheil,ihnlgs1ecnNtitt.euatsehoywertrrisitripwSgtvatooboryheesrmieTcsilcrtisieeteocneogtisrolocomhoo.ravolnotftfsbserfeTrtIpeariwdho,hsenoteImefhpdsrtntheairnIhbvcostOeneeheey.vtwdffseiAmtiftTsrnheiicnicgnhaainoratsatynies.notmtecEisifaosAivteoCpnhw,nesrdpg.esafedTlauelyrPoniimoeMttafdtiuomototrolrenseinamt,oamretliay,zrAnieyscsmt .

opurrsodeveorifstitoohnbesewephtroiecopMhlaswr.aen·idIlylmtroopefjosuturhstltaetinfiiYntnivttnhhefeseotiirirrmgeraexatntpiiveiorewnattaotilooo,nlbosefofpnmircoDeavsieniacdtreeaemdinebienndecrtoih3nue1crl,aPug2ade0terd0sio5tbotouAkfn:echleet.tsplasirererenecgnuooemrvwdbesemedorefbodtyfhbteCiymoeafenfssgeurctenhtisesvsee.t2 fn
investigative tool was effectively used and specific information on no~worthy cases. ' '

Chief

'This document was Division Counsels on

prepared by October 30,

the Department 2001.

of

Justice

and

provided

via

e-mail

to

all

2Title 3 of the Patriot Act, entitled the fnlemational Anti-Ten·orism Act of 2001, has a slightly different sunset enacts a joint resolution containing specific language. The unless Congress acts otherwise.

Money Laundering Abatement and Financial provision in that it will only expire if Congress result is that the provisions will continue

2

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 25 of 33

1'o:
Re:

All Divisions From: Office of the 66F-HQ-1085!60, 06/!9/2002

General

Counsel

I. Investigative Tools

Information from Communications Providers

• /

2rpsn§cet7roo2aqo0tm7tudu3c0imut.ro3eecvu.dt(eins.oVruiencTcodahoihtcbifiaoesysanmttVassohteoopisossilerrcsoaesieasvtrdgacMisetvdheuseoattwresiit,clt.oao-eIrnrerPLmaecxrnaldepauwtvii)adlri.nioeemndnuuTgefsnihosnludiysrsntaechtgoaerhetlempesh,epoeelnloanesaeswautpds.vncepwviasslnoinseaegiitssnocptenovhtrowoaemogvopfauoittoisebhhlsi,teeoosaruinniubwsn.siitnliehairSgrlteel,yetsscevhftuooaoe1cminr8chpdaemrUaaromgsru.cdSuneaa.mirdniCcleueaqaw.rnt§nueihtosisri2twncesh5sehdea!ttatt0iisfsona;mgdswc.1tetoom8hifmrrieaUeninptcdea.ehSdp1lbi.8nCbyoey.Ura,d§ta.ehSrree.w·Cas

hawsiisst/ihhgenaresaducbncpeotouwenontBrawkawisataihdcsdaSerecxusopbsmas,cnmardniuebdndeitrthcoIaentiminfoocenrlausmndpasertaoironevndcido-serTord.uhsreoc18lefissoUetfs.oSpsfi.aoCiynn.mfot§ierm2nm7tea0tsth3iaao(nctnd)a.ladcwuursaetotnimofonersrc,euamsneeysnttteomcpapanoyorafbottira1iyn ubiinnenfvdoieserssrmtuitgahetadeitobisonuynnhasceecalNtdonapubnrtryiootovwianniswsiitesoihrdsnevue.iedcSie1aes8atpstreirUccoah.trvScwi.WdhChewa.er,rr§aresra2urtnah7ctn0ehst3sfaw.oesrrivuthEinco-nempapetairnoioelnv-dwiCdeie-odmruewrajtuiaslr.siwslPdiotrichecavtjtiueioordniu.sstdolTiychc,tioitsohmnteopsooeevllaetirshrcehasenpwtrotaodrrueacxntptioihrneadotfo cwpco§pooetri2himnmrv7ee/maptt0rraca1gapuyn,po,nipveeisatcretsnoasardwettntueiqpihoctn:eeitngcin(CsosEh/tdlenteCarpri:larvdeProipiopfAncnivhsecoe]tiosa,tadg.nttae1ioueop8SttvnapeeeUenlsleroey.dngpS4ftioIh7.otnnChvogtteUe.nehrce§rC.enSanmaa3.bedCnb1.ltied.2lspeTc1s§rIlAehinove5retcsvate5utPcris1rcn-eyae(eqeIcts(ntt.)(1ib(4so[8t2e7ypht)reUeA(vcUnDai.pc/Sc.b)State..rls.CacseCtpl.tcat.oh§sor§itemafa2rir5te5epgu51dauwt1e0net,]eh,i)tetri.ehhessteaTttistwhs"ehtsCaqhoiutse.ae~[rbotweEblapleCyaiterutSPnseeteteAtoatardrotv,pyitiwnthsschgtteieeaartenAtdhputdoaarctaoo-tpter"vr,td])hiaf,,ss'eonlia8rfodEnoncUdrCao.bPtShflA.eeC, . chsipnuoorvcnowohtveeliivnvdmiteenrmrrg,eticodanoonderendiissmstcndVltmoooaotnselpuegcdrnreitoeaorttaastee.tlrcaeyrtwTiaDtsnhhkeieesanoicfAfrlffooircdrrisctmgeueaharamltteshtsiosevaon-eanrtlTdolseoehbipwttelhriioosgleapuar'awestcictoopt'onynnhmo.tytwemosTniceurtheaxnoivslpiricwlienfia\wcoit.iliinultoclr-nmyycusospototnsesoetttamenmonnrefyiittrtcecspec,nueopbsrbmtrsuooeotmVmnud.uiseodnereediTsrrcehwatncoitooshiodtrevdnirnsoesscqltiulhiunnoneisrteseaeem,ranyearocrdnsghei-esroncvclfioicesesu.re,
3

cfl/

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 26 of 33 1'o: All·Divisions From: OfL of the General Counsel Re: 66F-HQ-1085160, 06/19/2002
communications service provider itself is a victim of..computer hacking. This provision will expire under the sunset provision. See 18 U.S.C. § 2702(b) & (c)(~.);r18 U.S.C. § 2703(c)(2)(F).
Electronic Surveillance
Expanded Predicates for Title III- The predicate offenses for Title III were expanded to include crimes relating to chemical weapons (18 U.S.C. § 229), terrmism ( 18 U.S.C. §§ 2332, 2332a, 2332b, 23324, 2339A, and 2339B), and felony violations of computer fraud and abuse ( 18 U.S.C. § 1030). This is set to expire under the sunset provision. See 18 U.S.C. § 2516.
Nationwide Effect ofPen/Trap Orders -The Act amends the pen/trap statute to give federal courts the authority to compel assistance from any provider of communication services in the United States whose assistance is appropriate to effectuate the order. See 18 U.S.C. § 3127(2).
For exa..'llple, a federal prosecutor may obtain an order to trace calls rnade to a telephone within the prosecutor's local district. The order applies not only to the local canier serving that line, but also to other providers (such as long-distance carriers and regional carriers in other patts of the country) through whom calls are placed to. the target telephone. In some circumstances, the investigators may have to serve the order on the first carrier in the chain and receive from that canier information identifYing the communication's path to convey to the next canier in the chain. The investigator would then serve the same court order on the next carrier, including the additional relevant connection information learned from the first carrier; the second carrier would thert·provide the connection information in its possession for the communication. The investigator would repeat this process until the order had been served on the originating canier who was able to identify the source of the communication.
When prosecutors apply for a pen/trap order using this procedure, they gem:rally will not know the name of the second or subsequent providers in the chain of communication covered by the order. Thus, the application and order will not necessarily name these providers. The amendments
to section 3i 23 therefore specifY that, if a provider requests it, law enforcement must provide a ··written
or electronic certification" that the order applies to that provider. OGC will provide_additional guidance on language for such certification in the near future.
Intercepting Communications ofComputer Trespassers- The wiretap statute was amended to explicitly provide victims of computer attacks the ability to invite law enforcement into a protected computer to monitor the computer tr~passer's communications. In the past, the law was ambiguous on this point Before monitoring can occm, however, four requirements must be met. First, consent from the owner or operator of the protected computer must be obtained. Second, law enforcement must be acting pursuant to an ongoing investigation. Both criminal and intelligence
4

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 27 of 33
.. :Yo: All Divisions From: Office of the General Counsel Re: 66F-HQ-1 085160, 06/19/2002
oc§Acttilirhonanofed!enwtvnts0dehtepfcr3riieestcaaog0itinsecoimru(sfgptenrcouemat)aaorear(tt,lcidn2ulilooeayt)nrwnrm;nne,iascdli1bceoala8qlatnnttfuiisttbooUtoeeamhetnnrld.emiStssrufhoeh.cyssseClnio,teep(imnh.bvtin§wh.at~ uaetp_eeno.ti2u)rtt.dtrs5«thchtpeer:e1o.etearf'prh0mcmesatteehayi(uimsoi2etcstvoinh0toeooneeo)mraonndmsrb&gfi)poblt.eonauyyf(ilotg2Tlnatetnoro1r.ghro-"we)cicoui;sissnonopwn1tnivmatdes8nhsessrpeseesscUeetntrueioirt.tptmgnSsiettbant.o.raeCtegcyirtTleeo.rciuaxennehe§ssspv.opueep2iettsrsrAia,5sbeotsa1htnneashut1aeudimnot(trsth2d,fhfto"esoh)eocne(uerccoricir)oiottmcttz.homihnoeoerm,cndemnlsitduunteuuw,nosvnnniieoetoucsisvsuceansteaottetidniotgpfotiafoohrtinhotftnnesohevtslrchetyiscosooeioiammifnoamrpvunnuppuemsd.uslsesytteuftrSeiorswngrioens.iwaemhcltiyaehin1otrto8iihenvnoeh.iUtntoehalT.rvetaScohete.iiCboparendt , tipaporhmelrrnesooppovvaocoiiotaspsdtpeuiiaensoprcrtglnk'ayswerwdtnethou-aeqisttcsutwwyhhiarPioetiteaormcemuulhncmste.eehedRadnoWoietardngitfwatzhiotateshihaitltdenheeennertruaehe/redsTtevcgwecroepolaooirrvetpdritfneokhstarnhernorneaeemgfdgllDoaaideTsvtnenCtireetntaeaSrrgoclni-eolewmt!ecor0dRtnetr0terenogh0adptnuepo(iiueucderaqsasatencuiernsnodilcpiogmietetmrfsrRmawtevcoheunieewqilnts.rlu/snisecbiiSoorqapeefentueteifmswnioop1newrarm8tnserheegteUscr-,ineeoss.TrtSmtkuveah.nciirCneconhod.eWgsart§,ttsanototrt3hEuaaft1ihiptst2slehe~eCaen(cpntr!aerhplud)ewlee1(bats3elltrriei)ekeavc.d,qcro.eeuroaceWine)orn,qeraehidumwtissilepweewrnmitvtlhilietichnset at1pvdEnsai2aUhwn8hiuiacpL7eosq.yttcrp0ScUSiliuusphoaorl1.Uii·Coeo.tnndcr,SvinspyaRoa.eeii.url,lodnsrCt§ircesilsasasewanoeg2eett§otrcenoiqc5ai$usloftr2u.2f·d1ut)eFcrne70d;ieda0hxn,Ir1,tpni,ta/SyfOt0n2)cteatnohr,eAg0o.trlPardedSten0smjpmR.tue[se2ttpeStqaaces)eIaTxlttert.nnnusti)iisthcudtofeoq)s,toie,utnrnuicteloiroanreDiaoo3arrnnntdgtuhb0ecyiadoeasop1ete5glrawalSnr0(eycEnifu1a6ennepfr8ltdq)c(eoceeernautncsyqCrcdUti).eoeetu,oti.psrcxnhdviSnoStourtteiIii.en)4feoldr)Co]sisoie0nLi,ecf.fufut5isidti1Jnha§taChe(uc8indaaabedof2ossttt)iUtm7amwal5aticti0oct.nhgt0imoeS9yer5ao.Td.eO.Ufu0tCIviotinVnfatPt.eT.rUiSlhsipreeRic§hpe.no.UdCaSsIeeml2giIttan.c.anaiIC5Uoteotta,qt§io2v.unnon5uEur0ettls§nit0ieC8rh(tGrese,nPty2o!UmP)demwa8rr5Abni.&np0iSSv(aezeedl,a6.rtaenor(aCr)ai(cadtEgynatay.l(ep)vneiC)Dt;stw§ieehtAi(Poiinia1eitnsa1slAcht8lcagcreu8tenltelt(dUs4oewaegoEue~5dstdniw.isouC(soStnOetaw.htrh<<PfeC)ceoPei>mrikiAs(lnff.vtRlttwi§tii-ffehifnrcnuoliirIaieelfno2mrilrypfdomlemud7qyaritloai0sunrauiafnoecma7fepiitmdoerbrit(olioshyddmlitftfdtennei)raaidoaitatnftrn&,tiemincuoenscfne1strcolaite(t8uuniirggcohpolmd(e)ereUttl1n;esdhrsia8n.ateeaStaiolrrimnil.u,ofnCydynpta.hirnnieo§dnper
' '
5
o?3

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 28 of 33 io: All Divisions From: Oh,..;e of the General Counsel Re: 66F-HQ-1085160, 06/19/2002

Search Warrants

pif1abanr8seueovlltdmiUiehoeeso.vdftSpriie"ign.rzCoaoteihs.tndfieago§abctnucy3pwot!roia1ou0orDi8rv3nTuteia,sUandl.endati.vSontuy'is.gleddCydeiee.mxldnNa§ecemyocel2atuet7ityhtdca0iieiemon5afnpgtpo(e,reiarownnlvitcSohnrileitsiugaiacifdl,ohri)wiccn.npahigotTetinWrfoehiernnoeaesddsqrAoarucifncanaitgtrnthneieptemdbrsrioe-einndxvTogfaeiuthdtctirihceeuotesehtAniefoil,criofnoftrteerhcoxtoeohrtfeeretcthanhpogtedeheuiredvywrwdtisainaifbscigiueTynanoldasainessffttacon"ifmorooremeuuttaiaytscytssleytoofhaownfjatreuaaviognbtteohpolieraiaonnynrcdddsaaaiictvudza"aisvirndueneedsu"gareaasst.raloeo,dnnSrfaleeibsgeulheltt

Single JurisdiCtion Search Warrants for Terrorism- In domestic ten·orism (as . mpjaphdutreaeatedradfivsgicnnobeketenneasidseitnnwnilwnaosianatiocdhtdyahmvvttidiehneesideresmttthdwDereenitiOctottahthiJcocniitnnTodt)eoeowoorrrrfrfdrheoociiirnnocuretiahotnesstrcrmaeidnedcaiataewnlitnlvaioiodstitfithneioVtaaehonrlsiencottrheogldeeroilWrensaiotlnttriaremCigiicdTsrtiima.inntnmoavtScsteeteaehssisenteteiShgFstteeeh,aesc1etdaetTii.oisoocnnReronvisa.nserimicCncsnehtroihriagnmrwanadsvo.ateeiitnPronh·o.ntaeocon4rcitt1ndahum(vtietaosTorta)elit.iyidhdncevUbtdf.eoeSu.sSrpeiIt.stailpgsiAitcsusaeeattemtlitaodioirkobrncbenneshyleryoayoaIsfstfIhem'wpaOtfreatfeofnmglDpfl·i.iemtsOcrtateri-Jnsasyttdweoirll Miscellaneous Tools

amended

the

Obtaining Financial Records and Consumer Reports -Section 358 of the Act Right to Financial Plivacy Act and the Fair Credit Reporting Act to provide for

3tino4v1oe2bs(ttaaig)i.natfiionnanocriaanl arelycsoirsdrseolartceodntosuimnteerrnreapti.omntsalrteelatrteodritsom""intSeellei3g1enUce.so.rCc.o§u5n3te1r1in; t1e2lliUg.e·.Sn.c~Ce.

the ability activity, §

c§o2n3v3ic2tbe(dg)o(f5t)h(BDe )tN)yApoerPsarnoeyfdoiccfrafiemtenesseo-sSftevhciaottiloeannrec5el0ik(3aeselyxdteteofnibndeesdcDoiNnmA1m8siUtatme.Sdp.Cbley. c§toe1lrl6rem)c. tiisoStsnee(tao4sa2slelUtf.efSmd.Cetrh.alinof1f8enUd.eSr.sC. § !4135a(d)(2).

oaufmthaosristydetostrrueqcEtuimeosnet.ragsSeseniesctya1n8AcsUesi.fSsrt.oaCmn.c§tehf2er3oS3me2ceDr.etO'arD'y-oTfhDeeAfecntsebrionaedmeneerdgetnhceyAstittouranteioynGs einnveoralvl'isng weapons

an

educational

Educational Records agency or institution

- Law if they

enforcement can now obtain are relevant to an authorized

educational records held by investigation of domestic or

6

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 29 of 33 'fo: All Divisions From: Office of the General Counsel Re 66F-HQ-l 085160, 06/!9/2002

9pGin0oet0sens7mee.rsaastliiooannpapolrfotetvhiaTelONirsiasrtmeioqonuarirloeCtdh.eenrTtoehfrifsfeoinnrscEelsuddufoecusantiidnodnuinvSditdaeutrias1lt8liycUsi.d.SeS.nCetei.fi2§a0b2lU3e3.iS2n.bfC(og.r)m§(5a1)t2(iBo3n2).gw;Ah2is0cshiUstm.aSna.Cyt .Ab§tetoinrntehye

peurathembnrseirdoipodeUrlareodcnnyaa,icetspbeeeerydssloaooSvowvritfsaeattitohrogeEsensaeexiasUpenostxasa.fSpftnbeo.lidlxitirascesiorshidntmtfliFaftyneehtogindaiorsstlenfeaetoiashwgxrlecsntc,e.eoUJ!nsm8uTdnaremhinUitdesedi.ddtStptopi.erScCeodUttr.viasb.oito§Sseynn.is3o-sod2mnTria6pacahe!lgycx(eoaoapmsp)imlpn.riaocepstSicsitatceiealnayceaylUuneim1tn.xdeS8gae.cormUtoifnhtf.pnaieSemtstn.siauCoserloen.maafsar§fnelepc.dd7nor.esTmtfeemohrsmrriicsiscietetoocsts,mrelaidawamrnliihfdnjiioUtetriedietaisdlrsiaedmnbtieccycidoostmsinvpoiseoernirinmsevotsdeabfnteetrs or
us . cepaesccionufdxuoafcmcpdsrmeplehascucspsontaedou.sd(ofe§et1nosfned8eefortwn1hUsacfUs0eor.(ve3oS.efncSas0rf.cdroof..tiCiiueovdmenEnc.eittmxvtyser§apeaitraososagm1fkttfneo0abesamsrt3oeexeie0dnoofiaxo)mnatdtg.ephrmigunolfefTiiramcoccfeshgirtiagnttheeioatagnitietfgPhtogueenCanIatndce0tnsohcoafitmoyt!aooooUhnemrptaiacpsuApnmrtecutsrUcmkcteeelett!erurnroepcrisdgFnoneanettusrc;hseeasmrc;ceseetuoohadaadodmuxnseoffeniadpcomnsmtnursralUipdytelnmesleeiAotarinnatinstwnibatintoeoaiulesngtflnnsicl2esaetfdoohots0lnsAaderssfvtyecaeeou$iiemtcscrgt5ae(utnhtar,1io0rsouga8i)c0ncetss;oy0e,ksUecudevonj.alnUSreaosrmst.rritlcC"aiiiwofraseplisid.shermcpt§iiososrcooiuom1tntfrdi.hta0toaloepielonc3mnfujunmfa0tueaillge)anesngrt-rntahsseciTtsesrcoyfpeshertrpmr"shoeeoephmeapftuoArooeuerlrrcfcadtpeetittd.qosehhrasudaeahSmeicnarsekae;cegdeker1if'n;8sogr

New Offenses

II. Money Laundering

dcHuaotreuresonefcRtyheeipnAmtocttos.Brp3oeu1culkitfUCioc.faSastl.hChlye.SsU§mtan5utie3gtse3gd2tlhi.Snatgtatt-heTisshwpeirAtohvctithsmieoainnkwteesinlitlttaoapnpeolvyfafdteoensctheoentodCusMcmtIuoRgcgrcelueprormirntoignrebgetrhfeoaqrnuei$rt1hem0e ,e0efn0ft0e. citTnivhee ukinnnclnalwuwdsfeuwlaenarycetbidvueisrMtyiinv.o"eensdesI,ytfrlwoTicmoreaunanlsdscemndriiomotttriibnnueganlnlBioecucfesfeneisnssneresusde.s,,)e'toshfroa-rwtT'tiehhnreeveoGsilncvooteevpsneedrthnoeemdf m1eto8notbUvteeo.Smus.shCeeno.dtw§"ott1foh9fapu6tnr0todhimsse otebhtxueapstoiatnnrhedsesuesddpewptfooaesrntdaant

7

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 30 of 33
:ro: All Divisions From: Office of the General Counsel Re: 66F-HQ-1085160, 06/19/2002

storefront or other formal business open to walk-in trade. To the contrary, it would be sufficient to show that the defendant offered his services as a money transmitter to another.
It is already an offense under Sections l956 and 1957 for any-person to conduct a financial transaction involving criminally derived prope1ty. But Section !957 has a $10,000 threshold requirement, and Section 1956 requires proof of specific intent either to promote another offense or to conceal or disguise the criminal proceeds. New Section 1960 contains neither of these requirements if the property is criminal proceeds; or alternatively, if there is proof that the purpose of the financial transaction was to commit another offense, it does not require proof that the transmitted funds were tainted by any prior misconduct. See 18 U.S.C. § 1960.

New Investigative Tools

Expansion ofMoney Laundering Predicates -The list of foreign crimes in the definition of "specified unlawful activity" is expanded to include public corruption and other foreign offenses. Similarly, amendment to RICO makes a long list of acts relating to te1TO!ism predicates for money laundering. Moreover, ~der Section 1956(a)(2)(A), it will be an offense to send any money from any source into or out of the United States with the intent to promote such an offense.

Subpoenas for Overseas Bank Records- A new statute, 31 U.S.C. § 5318(k)(3), provides that the Attorney General or the Secretary of.the Treasu1y may s~rve "a summons or subpoena" on any foreign bank that has a correspondent account in the United States, and request records relating to that correspondent account or any records maintained outside of t~J,e United States relating to the deposit of funds into the foreign bank. Congress has created this authority by requi1ing
that any foreign bank that maintains a correspondent account in the United, States II1Ust appoint a
representative to accept a subpoena issued by the Attorney General ortheS<icretary of the Treasury for bank records. Thus, it would no longer be necessary to seek those recOrds pursuant to amutual legal assistance treaty or other procedure that is dependent upon the cooperation of a foreign government. This section of the Act became effective on December 25, 2001.

Long-Arm Jurisdiction -The Act expanded the court's jurisdiction to include a foreign person, including a foreign bank, if the money laundering offense occurred in part in the United States, or the foreign bank has a correspondent accouqt in the United States. See 18 U.S.C. § 1956(b).

financial

Voluntary Disclosure by Ba institution that makes a voluntary

nks- The Act
dis~losure of

provides immunity from any possible violation of

civil liability for any law or regulation to a

government agency. It further· prohibits, with some limited exceptions, the person or entity making such

disclosure from notifYing the person involved in the suspicious transaction that the transaction has been

repmted See 31 U.S.C. § 5318(g)(3).

8

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 31 of 33 --To: All Divisions From: Office of the General Counsel
Re: 66F-HQ-1085160, 06119/2002

Definitions

III. New Terrorism Offenses

riobadacnepcyoarcvtnptkoieTigevinrsdeadeitttsnirirsimpgo.eatoaouspitnSdsiiobndvaectegiteeocni.iougthn1onnI8uttDon-eomoilUnvnosrtdaeg.mhciSnseneopte.dicClesregilittrf.xuaomicecitd§isiiaotionTth2rnnintien3ag,ilsrmty3gonro1awdrioar;fdeater"iaiFfitfdoatihsfeneonemidvinmcwo.t-itiortRioetThdlhcsnaeehotetCioeietscoecfrerArnoc"itrrmeeivn-coniridt.tarctfouocePertcrcrm.ihieaiotve4slaaofmiljtctlsu(feiir"eaaodraiamn)inasag;rnadpcio2nnldhiov0ecatp"eewwtlUiuirrnloanrla.dtoarnSmweretr.arioifseConsnifnnmnaot.ttsit,§hfti.b"iioaetonyh1nnUnfe2Tdaml3ulnohUd2aeitefietsnng"serstc;idcrdetemldoe2toSmed0mt-shstiuSastUeeirmrtstsnee.apSt"dsctiooe.etchiClisffnioatciev.onnvey§dor,teeuloTdaa9vacmsfn0diat~saoyn0tdsaig7migssomt.,stoniaaioe"cavntanteleasnamtalinomnde, nt . DhlacteoabrNsivomsiAenugectars(loauslavvoedneeenerdgSpbseecrerorevecapreottidreFraoatrinenhtlnyod,oIce.scfsorofrataemiambmnltoupesCevetuscerest)ri)e.omil.rmifkTecleerihosilmmeyfwsiTetteoeaesrto,riberftoeoforneercstnimhoss(meme1os8vlmi(eas1Uidrt8te.otSfeUnrf.doCopSmbwr..eyC§dtRhti.e3Ice§n2Ca-l8t2mOie6s3-t}o3ip,s(f2rptfasebte,n-d(nidiigmsnc)eaaca(srtl5re.eui)lsd)ypD-i(rnoseTugfedehfeieaectnoUandstuSCeeemfAssoinnifbPnoigetvarriroetotornhslivsfeoiwiatonciAanogrscalcalrlmeatscc§sfoottaid8nuvoi1clinfto3eie}laroend,nfnsdce New Offenses

ippimwhtodonnrrruifraioatosfdtmendsevahvenssenbiiaaptdisvslnttnioiterheionotcarrsl.en;igetncfnaaseScacoittgp;inoauertoaoonrsesainwrreevnite1tmerfeastdn8AeastityaeindcctmiUoasatikgnaaslntna.igmihcSfnttsgviykr.fgsaroeCeaasexkrrhtnal.rositnssismaeomcn§eaponlrfuoiwoeaMs1ienmr;ospr9tiftsayundopao9sssigrttl3rosrsietam.oaabaroncTnntboatwiriensrtldohviiipanginontaelnochynghvasesryiritpamibcnaeosnobilctgtfaoejrioekmos2tlrmulawosen0eyttgassitivaytsri,otshcaoenoe'nvadnhayn'iealirsinShscsstpaptyorulieogeeceiscnmkr;elgrthettesnnapapsotmorottlo,rndiaofwiosfsfcearf-oneoinoctndnnTnhidsregslmiahtaihesghttenat;uieneemtgnmlahbasapetnleci,w,airrodtnoonoaislvgorncpaarlegtotfepislitfeiitwvyaseecfttsuismey;yat$tbpyleuioeposrmamsntotfrigesaghpaaswneelno;iribcrmiindkfitsseinht.eoaatcostolsnreoydrSsermvrnadcpfatdtsneoekere.eptgarnslcivdiieonettirnriisfursacuisgisopscfcaecumywtadbtvihsi.lilnivitlseeotaywerThalt,eoceieshgpromirnautieeanmpwtbaprrosssdrresnotoeafrnchonweknirscbieuaetilhtlsts of spies (see 18HUa.rSb.oCr.in§g79T2e)r;rtohreisretsw-aPsrnevoiocoumslpyat.th-aebhleartberorroinrigsmofpferonvseispioron.hibTihteednoenwlylatwhephrrouh·biboirtisng
9

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 32 of 33
To: All Divisions From: e~~ce of the General Counsel
Re: 66F-HQ-HJ85160, 06/!9/2002

dboheifaofsreltbomnogsrceiictnsia,oglinnowcroelfcuaoepdnnoinecngresga,dyluienfssagetrcupoilcefitrtwiiseooesnna, sposoawfnbahsoiortocahrgfaamefvtoaeosfcrsnoaudmicercslmetrraaiutrftcteftfadiaoccoinlir,iltiaaiteirreesss,oa,noburoosaueritrboctoofrmancfubotcimpnliegmraaorcitmyfa.gaovteSavrreeiiraeenltsym18oeorUnfctt.Sehpne.rC·moo.priiec§sratt2ly3o,3r9. TUpsfrotmmooeurrn.orsSaapabtstkdtp.wrheCeeieeorcehcs.uirtS§uiatbistctoalheie2hennnsdesd3uccptt3oitlpirhnmiun9foopafdApavnoetaenrinn.srsEssentusyiRpxaeeoocpadlernhrlareiftrpistoomroenytptrfrsgpdamlAiomitceefcduetsosaaarvrtirtinbocrineacoeodlfrleewsyirmEs/attcAhualoxooaipsspbncretsuprouheexipyosrtirptlpairttrhdneoatr0Eeriygrnb1ntinscetusoighnetinwu.wssasdatnthwiTbernttcoauehrhadelnrmiisypmrn·Mseoireeenodtprnaxhnig.vrttpseotseimoadA,vArUnfeiaidfcacsdnneadritleindoiditodSmtsnevaiufetdoeideoc2pswndSxe0,piaiptan0sonloaaslcu0tgrrynelcctua,ddst-hoosd,moemTsaecdetiahslhsmseatteteethxrnaihritpeplnofiteiYraeectscolcrdetrilthiniis.ovkmmiaugbfinTdpiiitiuotnvphhteinwaitaoenochldtrigneAientlspiaragooncrlwpnofneytorfdheiaoeprbnrilhnayrbsgipoisnsoibrseettvtoeeiielscitsinvdndiltmcoaa·idimoadntnniiindinng.cfansiagetbgemeSt.edtilaehniTcadtegahrlhvti1atmiihi8tscteeetihsse

·Sacppbtheeeeiboerraeitslcoacoo1eliignon8rfciusgUctulieiac.mnprSlarduswo.lirCtracpaei.gtnosaete§cpsPdneeso1ot.stfna7o,sostAs5rierse.sfsdtsten,oadslaoxtioiounttininntdorieeenlopoasiase,sffltroalfepsyundoBogainsiatibsostslcielyvdroaseeijsgs"uasiihs,ntsceeotgdadilnrfelauoiaAcergbtndagiaueboebgswllnyoyeetnrgoa-dstif,"ciTpfsaierbhcllonlheyeapsagAegthrhaegyfclenoeltaatdSrelcoiecsftectierrnacorrtb,setoma,1tpxaiimrnitsronhhyerteeeoneodctsUffattaai.dlHSvnlctyee.yta,aeripdlmubdetdmhoppiotneaeairaodrinirsnfdnesoiaeddnHalrespvoqueri(fumcerifanseseanoescnna)ntlsiursetStcody,ethioarptn,hlvogitoaiehscrtfnes,eeosesluts.ofhnsin'deosrem, r

c4§(dpUpwr2err6e.oosSr0wUtpeh.r1Ccei.om2Sbkr.yt3i.ieyCtin§(inmbgo.w8g)nb1§ticr(etoah2do(rnias2iamnnrBmAaassm)4totntah;ttnudeg(ee1)nsmiam;8nsaitcppbg1tpUeateo8tontca.taiSUadrinoang.adnd.CldSneesmc.t.sCosClot§ia)rfonn.;ro2nnsei§4ytpu3ssii9pi9c3mnoril39Ugarree0Acaas.a(aSycyrnc(n.ysfr)mCdatie-(enc.saktmtTuiet§eilelnlihsrttrl4s)iieiiitn;te6na'oaAsg5lg1tre0ss8coii'uan5tgriUlpnaafp(jp.mucsufeSoeaern.oelrirdCa)nsrtre;lyd.dthtroiiiae§a4necldzt9sgt1eaifsro3aeUwrerdcq6nov.eiou3Srleoauaii.rtp(sflCsiaitoetnslt.hlsno)jit§)e;uqse;trunh4U1ai1in8eu6bdn8gr5oUuiipUta0sone.ir4mS.dprddS.ee(dS.CiacrlCeniltitnsy.ari.t§tcmeetir§enrrofa2efsga1yef)s3ct;r3io4)tnei6f;oIl0ngfi28aetAcaybnne(Ud)udis(.dnw.etiS4oljsldiul.9r.tCithtnuiUS.ngrfeeg§.lsSie)g;oo1.hC1r9rt8.92

Additional Infonnation and Manual Changes

b~-1 should

be

direcAtedddtiotitohnealIngvueidstaingcateivaendLaawsUsnoict i , .a _t . .eT~hweilltebxet

forthcoming. of the law,

Any questions

' ' 10

. .

osted

OPCA-20 (12-3-96)

Case 1:02-cv-02077-ESH Document 20-4 Filed 03/07/03 Page 33 of 33
xxxxxxxxxxxx
xxxxxx
FEDERAL BUREAU OF INVESTIGATION
FOIPA
DELETED PAGE INFORMATION SHEET

Page(s) withheld entirely at this location in the file. One or more of the following statements, where indicated, explain this deletion.

)!iJ Deletions were made pursuant to the exemptions indicated below with no segregable material available for release to you.

Section 552 ..,. (b)(l)
L Jill (b)(2)- ;!.
I:J {b)(3)

0 (b)(7)(A) D (b)(7)(B)
~ (b)(7)(C) - I

Section 552a 0 (d)(5) 0 (j)(2) D (k)(l)

D (b)(7)(D)

D (k)(2)

D (b)(7)(E)

0 (k)(3)

D (b)(7)(F)

D (k)(4)

D (b)(4)

0 (b)(8)

0 (k)(5)

~ (b)(S) -I

D (b)(9)

0 (k)(6)

D (b)(6)

D (k)(7)

D Information pertained only to a third party with no reference to the subject of your request or the subject of your request is listed in the title only.

D Documents originated with another Government agency(ies). These documents were referrtxl to that agency(ies) for review and direct response to you.
Pages contain information furniShed by another Government agen~ifS). You wiJl be advised by the FBI as
to the releasability of this information following our consultation wil!ltbe other agency(ies).

Page(s) withheld inasmuch as a final release determination has not been made. You will be advised as to the disposition at a Later date.

Pages were not considered for release as they are duplicative o f - - - - - - - - - - - - - - Page(s) withheld for the following reason(s):

0 The following number is to be nsed for reference regarding these pages:

xxxxxx
xxxxxx
xxxxxx

xxxxxxxxxxxxxxx

X Deleted Page{s) X

X No Duplication Fee X

X for this page

X

xxxxxxxxxxxxxxx

30-79 FBIIDOJ

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 1 of 88
EXHIBIT II

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 2 of 88
Documents released by letter dated November 14, 2002

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 3 of 88
U.S 1artment of Justice

Federal Bureau nf Investigation Waslungwn. D.C 20535
Non:mbcr 14,2002.

MS ANN BEESON AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD STREET NEW YORK, NY 10004 2400

Subject: ALL RECORDS RE: DOJ RESPONSE TO 6/13/02, LETTER FROM CONGRESSMEN SENSENBRENNER

FOIPA No. 0966750-000

Dear Requester:

Tt1e enclosed documents were reviewed under the Freedom of Information/Privacy Acts (FO!PA), rit!e S, Llr1ited StJtes Code, Section 552/552a. Deletions have been mc.tde to protect inforrnation which is exempt from disclosure. with the appropriate exemptions noted on the page next to the excision. In addition, a deleted page information sheet was
inserted in the file to indicate where pages were withheld entirely. The exemptions used to withhold information are marked
br:low and exple1ined on the enclosed Form OPCA-16a:

iJ(b)(1 1

Section 552

ll(b)(7)(A)

LJ(b)(2)

LJ(b)(7)(BI

"'(iJ)(3L_ _ _ __

'"(il)(7)(CI

IJ(b)(7)(D)

1(b)('/)(EI

LJ(b )(7)(F)

U(b)(41

L(b)(81

D(b)(51

C:(b)(91

D(b)(G)

24 page{s} were reviewed and 24 page{s) are being released.

Section 552a ll(d)(51 UU)(21
ll(kll 11
D(k)(2) '1(k)(31 ll(k)(41 D(k)(51 IC(k)(61 D(k)(7)

u Docurnent(s) were located which originated with, or contained information concerning other Government agency(ies) [OGA]. This information has been:

Cl referred to the OGA for review and direct response to you.
n referred to the OGA for consultation. The FBI will correspond with you regarding H1is information \.vhcn tile consultation is fin shed

fJ You have the right to appeal any denials in this release. Appeals should be directed in
writing to tile; Co-Director, Office of lnformatron and Privacy, U.S. Department of Justice. Flc:Jg Building, Suite 570, Washill~Jton, [J C. 20530-0001 within sixty days from receipt of this letter The envelope and the letter shoulc.l be clearly marked "Freedom of Information Appeal" or "lnfor·rnation Appeal." Ple~~se cite the FOif'A number assigned to your request so th<1t it mJy l1c easily identified

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 4 of 88

~ The enclosed material is from the main investigative file(s) in which the subject(s) of your request was the focus of the investigation. Our search located additional references, in files relating to other individuals, or matters, which may or may not be about your subject(s). Our experience has shown, when ident, references usua!ly contain information similar to the informatior'! processed in the main file(s). Because of our significant backlog, we have given priority to processing only the main investigative file(s). If you want the references, you must submit a separate request for them in writing, and they will be reviewed at a later date, as time and resources permit. Ll See additional information vvhich follows.
Since1·ely yours,

Fenclosure(s) (2)

David M. Hardy Section Chief, Records Information
and Dissemination Section Records Management Division

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 5 of 88
(!~t\~: G~-::'.f\,~000)

P:cecedence~ lMMEDli\TF

Date~ 10/26/2001

~o: All DivisiorlH

1\.\:tn: 1\DIC, SI\C
CDC

From~

Of[ice of the General Counsel

NSLU/NSLB, Contact:

Room Nut·ioi

797 ul

5S~curit·y·

1\.pproved By:

Mueller Robert S Jli Pick.J.rd Thomas ~~ Parkin~;C)Tl Larr:y R
l30\'JUHll M E

l-a.\v

1 ·.
LlJl'__

L,~-

.-.~~~--··~-~·---~]
1

:~ ~~~~-~-"'~~--~~-,. ~~""-~~~~·~

b7C

Drafted By:

C~.se ID #: 66F-HQ-A12·17B63

(None)

Title;

NE\'1 LEGio31 ,1\TlON REVJc:JONS TO FC!/IT LEGAl. AliTHORITJES i'ORSIGN TNTELLlGENCE SURVEILLANCE ACT (riSA)

Synopcif..i

~;l.JtFtiL:tt i··.(·:-: :-,_·~·e.;lt ~-·h:lll'-JC'.'": '.-·.) FrSA ,-:t.-lt_II\--:e anr.1 C('-l atc•d

1.cga1 au~~llor i.l _i(-'2';.

Det".ctils ,:

0;1 Oct..oL-·el_- )r_;, )_{}()-!, tLe Pn.:_:L->Iclent ~c:_iyn(o;cl th.:-: '~Unlt.ltl~~~
dncl ,c;t_lc'IlqtiJc~JlitJq i\tilC'l-i,·d Tl.c~ h';-' l 1 t--u\rlding /\pr)r·orn-·id\_(~ Tool;s PeqL~ircd to lnLerccpl u.nci Ob.sl.t.-uct 'l'crTorisn1 Act oi :200]" ~tJh_icll :-:O.igni_r_ict.nttly revise~> mJny legal duthuril:-i<?:s n:=;L-tting to
count.ert.erro_r·_i_,c;m. The }\ct, which con~.:>ists of more l~hun l:iO
~;ections, ~::::_'f f ect L> chdnges i_n nat::. iona 1_ security author-ities I Lht:: :_;ub::>tanti -ere crimj ua1 law, immigrat. ion lavJ, money laundering
statutes, victim assJ.stance statutes, and other areas. The Na.Liona1 Sc:t.:uri ty La.w Unit I OGC, is issuing guidance on those port.ion,c:; of Llle l\ct relating to nat:iondl security operat-ions. Th.-i.s comml!rLi.cation addresses changes in the Foreign Intelligence Survelll~nr~ Acl of 1978 (FISA) .1nd certain other stattltes
relat in·g Lo intonnat. i.on sharing; a related serial describes char1ges to Natl_onal Securicy Letter authorities. Other OGC communicatJOtl.:-~ adch-cs,':> the nun-Pdt.iona1 security law port-_ions t:.hc=· Act.

I

To: CaAslel 1U:0l 2'<-.crvis-i0o~2077-lE-'LSuHm: DOocfufimceenot f20t-h5e FCileendeL0a31/07,-/,0o3uusPelage 6 of 88
Re: 66!:'-HQ-Al21 .)3 f 10/25/2001
IE Lhe a l.\1 kc ot the September lJ, 2001 aL Lacks, the Acimir:i_sLralion p!:opo;;ed to Cong:!:::"ess a variety ot proposclls lo i.ncredsc the efficiency and effecLivene.ss of FCI/l'l' operat.ions, and ~ suhs~ctntia1 portior1 of the Act is given over to this purp0se. In particular, the Act seeks t;, improve the efficiency of the FlSl\ process and to remove barriers to the timely sharing of infonnat ion betv,'ecn FCl/JT intelligence operation:::; and critnir1al investigations.
Many prcv ic;ions ot Lhe J\ct, includll1CJ most of the nat.ional ~Pr.uri ty (HTlvisions, are subject to the 11 sunset. 11 provision described in Section 224 of the Act. This Section staLes that the authorities expire on December 31, 2005. At that t:.ime, Congress will have to d_pc;_i_dc whether or not to rc-:-authorizc Lhe pr-ovisions.
T:1e tollo\ving surmnarizes the changes in nutionul sec\.a·i_ty aut.hor:i t:ies by various sections in the Act (l\ separoLe. EC of this same date addresses changes to National Security Letter (NSL) aut.hori L i_es). For each secl ion, there is a summary of putent ia1 chaugt~~~ in FBI uperation~l procedu~~es. Recipi,_:nt:::~ ~-;hould nolc· that t.hi::~ is only initinl qui dance; tnou:::' deta i 1 P:d explanations and procedures may follow in subseq-;Jenl_ comrm1~1icat_ ions.
Sh.axj_ng Gra.nd ;ru.cy, T_i_tle tli aL.1cl Criminal Investigative Information
sr--.,_:t_iull )()-~ fj_r_-:.,-;L ame:nci~:;; Fcder<-Jl Ru.if~ :~1L C'rjmi_nal
Pr·c)ctslun-:. 6 (e) \_(l pPnn·it the disc.lo::::ure ot grand j·Jry ·i:1fonn.:1t:ion
invol'J:~ng int.ellis-Jence in(cnnation ''to any Federal law eu(on_'erncnt, inLelligence, protective, immigration, national defense, or national security officia1 i_n order lo a~~-;_i_E-;t the uf [ :L cia _I_ r·ccci~; :i nS.l Lhat informa.tion in the performance of hJ.s officiaL duties.'' The Section also requires subsequent notice to the Court c1f tt1c ctger1cies to which ir1formation was disseminated and acids a definition of 11 foreign intelligence information'' tr_-_~ Rule G(e) The Grand Jury port.i.c1n of this ·section (Sectjon 201 (a)) L.S not subject to the sunset provision.
Scct·ion :~0"1 lhen amends Title I l l t:o a] ]ow LhP. samP. .~o.:__lr·t uf j·i_.:::clos1cll-·:-: ol ·~"itle III ir.:fcrmation when th>:> matLel-s inv:-J]\/(' rc.1n..·ign irlle}-];~Jl~ncc 1'1::::=> .J.ny oLltcl- Fedcrdl :;\·! en[e>!_CC'menl jnLc! l i~Jecce, p.ro:_ecLi\'C', imn1g~"at :u1: rt,--lt IUilctl defer1se, t)r I-taticr~Jl sccut:iLy official ir1 order rr-· ~ss1st l-llc
<Jt[ic ::-1l rc:~c·t---,ivlnq :~ha.t ii:forn\C}tiun Jil r-_he peric:-n-·ma:,<:-'e of h=--~-;
of:fi_c al dut 1 es. ,. Tho ~~cctiO!l adds a dctin~tion of fore-ign lnt__ c-::.J _LS_lencc int.:::l2~mcttion \~o T-iLle TIJ, and requiJ-es th~-: Attorr:e';

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 7 of 88

J\.ll Di\r_i_sic

From: Office o[ the Generc: ~ounse l

66F HQ~A1~4id6], 10/26/2001

Gcncrc:t_~ l:> dc\'clup p:_·o.:_:cdt~;_-(._:~~ L:n_- the f;hQr::Lnq or G~~ctnd ,;tll.-y or Tit:.le Ill _i_r:.foJ._·m,-=ttion thaL identi_[ie~:; a U.S. pe~son.

Finally, Section ?03 estdblisiles chJL 1'r1otw~thsta~d1ng
dl1Y other la\\'" i t is lawful for criminal invcst::_igo.t.o~s to share foreign i.ntelli_gerice information obtained in the ~ourse of a c r i m.i Dill invcst-=-igation w i.th any other federal la·w enforcement, intelligence, protective, immigration, national defense, or national sect1rity official, as above.

The intent of Section 203 is to elimi:1CJ.tc barriers to the timely sharing uf- intonnal ion betw·een criminal investigators
Ltnd ot.her PntiL·lec~ (the lntclli.Cjence Community, th~ .lNS, DoD,
etc. involved in Lhe protection of the national security. The Section essentially gives the FBI full discretion to share criminal_ icvest.igaLlve infor-mation, rega:r.-dless of its source, whenever it involves tor~?;.i.gn intelligence info:nnaLion (which .is defined t.(J include all foreign intelligence, counteri_ntelligence,
and cour:t.erterrorism information) .

Procedural Changes: FBI components in possession o[ information obtained through criminal Lnvestigative techniques lhut is also foreign intelligence infonnati.on shoL~ld arrange for the appropriate dissemination of the inforrnalion. Dissemination to ::he Tnte.'.ligenc•.: Community r!1Ust- he' r::OCJl·di.natecJ t-hn_JW~Jh thP
I·clcvdnt ~TSD o1· CTD un:t.'::> at ?DIHQ. \'JhPn L.Lc DOJ :u;;sues
procedure:-! .1.:-Plat2.n~l t.u the: c_i LssemirE1lior: uJ- U.S. person i.ntnntkition, t_:,hc f·;,:.;lr.l \·Ji1.! :."E'~C(-'_ivc add"ition,:l·l guidance.

?

<~r<.ovin9" FIS.A ELStfR 1\_uthor::i..ty

Section ?06 amends FTSl\ t_o allow t_he Court to issue a ''rJener.Jc'< ;::_:ccorLd,:~J."'r' urder wher-e:· ;_}l(• Court_- t ind.s thett the> "J.ct i.nu~,;
ot Lhe l.a;_·gct ot Llll' appJjcatiul! may bc1vc tilE:: eftect of thwa.rLinq the iden 1:ificat.ion of a specified person.'' This means that, <.vhen a FISI\ target engages in tradeccaft designed to defeat ELS\JR, such a;_:; by rap idly swit_ching cell phones, Internet accounts, 01
n:eet.ing venue:~> 1 the' Court can issue an order directing "othe-r-
persons,'' 1 .e., tl1e as yet unknowr1 c:ell phone cari-ier 1 Internet service provider, etc., lo effect the authorized electronic sttr·velllance. Everr if the target is not engaged ir1 obvious t_radecraft, we can obtain st1ch an order as long as the target's actio~.s ma:::,-· ilct·ve the effect_ of LhvJarLing surve.i lJ.ance. This w"i. L~
allow the FGI to go directly to the new carrier and establisl1 sur\lt:1llanc.:e on. Lhc, authorized t.aLqet. v1.i thout havinq to ret. urn Lc. the Court for a r1ew secondary order. It is lil:ely that the Cour·t
'1!ill require cert.a.Lrr. p1:oce.clures for th•,: use (_)f Lh:~s aut.hor'..ty, ~. () i.nclude [;pcc_ia1 mjy~in·:·!.zatlDI~ t-!:cr.l.iremenl~;; :ind ~ltr.ely af:t:.r::>r-t__b~"
f a.c~t rclYJrL ;_;;:1

:ro:

CAalsl eD1i:0v2is-ciov-n0:207F7r-oEmS:H

Document 20-5 Filed 03/07/03 Page 8 of 88
Oftice oE the General lrlSC1

Ee· 66F·HQ l\l247b~J, '0/25/7.001

Pru_ccdL1Ll..l----.£l~t-nlqe;~~ \~/hen Lhe field v;anLs to obtain :•·oving ELSUR authority, the request for a FISA sent to FBIHQ
should include specific facts that will allow the Court to find that. the actions of the te.rget may have the effect of thwarting the requested surveil} a nee, absent the -cov:\ ng authority. Such facts could include examples of previous tradecraft by tl1e target 1 by members of the target 1 s group or service~, or by ot.hcn_, with training or background similar to thQt presumed for tl1e target.. DOJ/OlPR may issue more detrl1.1f'd qu1.dancc <'Hi experience. with this p}:--ovision gl-ows.

·' ' .

Changes in the Duration of FISA Authori t·y

Section :~en exccnd::-~ the s+:.undard duraL.ion for several c~ltegories ot FISA ordPrs. First, the section aJl.ow for ELSUR .]_nd :::;cu:ccl1 Cll_-dc:l·;-; on non--U.S. pc1-~~on agents of a foreign powel"--
pled under SLection lOl(b) (l) (/\) of FISI\ (.L.e., otficers and employees of foreiSJn po\vet~s~ including members of internationa] terrorist groups) to run for an initial period of 120 days (instead of 90) and Lo be renewed for periods of one year. The ;-_;ectinn alno extencLs L:he ;.:;tandard duration o[ physical. search
orders in all other cases (U.S. persons and non-officer/employee targets) from 45 to 90 days.

Et~OC_f'_cj_l!...l.:_Cl:].___C_~hai~·J.CB: NonF-~ :-Jl-r" ·ccqlJlrr:ci_ OJPP \>Jill ':.rcu1s i ',~jon exist in9 covPrages to t:.hr~~ TlC'W durCitions as the)' come up- tor rcne\\1i::l1

Expansion of the FISA Court

ln OLJlcr to incrca:-;c t.hc LlVcl.::._]:lbil LLj/ uf l.>ISA JUd!Je~s,
Sect ion 2 0 7 expand;_; t-_};t~ Courl from S(-~ven j uClges t.o c leven i udgcs ,_
~ hr:ec u[ \\:hom rnu~_Jt r-e:-;idco _,_n the V·Ias_:ltll~:JLor:, D.C. ,-=tn-•c-1.

5.

Changes in FISl\. Pen Register/Trap and Trace

Autho:city

Secrion 214 1:1ak~s a substantiQl revisior1 ~o the

st.a:1dard for d FlSA pen register/trap and trace. Prior to the

Act:-, FtSl\ pen t~cgi-::..~tcro required 1:::\'olcJ shov.Jings: (_1) relP:vance t_o

drl in'-IestigaLi_on, c--Jnd (~~) spPcif:ic and art.iculable facts gi~,.rinc__l

te;=tson to believe lhill- t.he targeted line VJas being used by an

agent

of

a

fore _i.gn

power 1

or v.ras

j n

communications

w:i. th

such an

<lge.nt., '~ul.der specified cl L-cumst.a.n·-=:es. Section 2111 simvly

c:l.1rni.nates the second of the required shoh'ings. FISA pen/trap

and '_r-,-,ce ')Ul.ers a.rc n0w ;:tva_i.labl;:,: ,,_rhene.,.rc.r th~ FBI certifies

L~:a_t_ "t.Le ·inf"orrnati_or, 1 il~~:Jy 1.o h0' ol:Jtai.nr:>d i.'-~ fo::--e.iqn

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 9 of 88

To: All Divisjo.

From: Oi 1 -Lcr;: ·Jf tlte Ger!.era )Unsel

Re: 66f'-EQ--l\1247bt':d I 10/76/2001

1ctt.e:ll:isv:.nce i'.li:CrP,tation noL conceTning a Un·~_ted States person,
or is relgvanl t9 Lln onqoinq inVPSligation to protect against international terrorism or clandestine intelligence activities, provided thut such _investigation c[ a United States person is not
condt1cted solely upon the basis of activities protected by the t irst amendment to the Constitution. 11

This new st'21ndard requires th0-t the information soughl

be reJ evant to an I! ongoing investigation to protect against

international

terrorism or

clandestine

intelligence

activities.

1 '

Usc of Lhis tec:hnique is authorized in full Lnvcst:igations

proped y op<ened under the Attorney General Guide] ines for Fill

Foreigr1 InteJ_Ii_gence Collectior1 dDd l~oreign Cottnterintelliyencc

lnvestigallons ( "FCI AGG") The techrnque also may be authorized

in prcl.im.Lnary inquiries, \'dlh prior coordination through the

reJcvant NS!J or CTD unit at YBIHQ. Although the langt1age d~ffer~

somewhat :rom tJEJ.t used _i_n the l:YCevious versions of the statute,

OGC and DO,} take the posiL.on that all i.nvesLigations authorized

pttrsuar1L to the PCI AGG arc ''to protect Jgainst i11terr1ation~1

terrorjsm oc clctncie~Jt.i.nc iniY·l·li<:_Jer~cc ,3c1-ivities 11

T~1e SPct .i.on Ld so insert:..--: ':::he 1 nnguage 11 provided thett such dll irl\re.c::;ti~Flt.i.ou of d Unjted States person is not conducted soleJ_y on t~1e hasis of acti_vjtiPR protected by the first
dmPJHi.rr'.c:nl ot the C'onstitution of the Unitf~ri States. 11 Co:tgrt~SE>
i_tJS(__'l'Lcd t h-i_~, to indicat-_e +:.haL the tcchnj_que will not be used against u_~;- pen:_~ons who aLe rnr=:!rt!ly exercising constitutionalLy protected rights_ Hov.revcr, it is highly unJ ikely, if not Qntircly impossibJ e, fcH- an inves::::.lgation LO be authorized llndcr
the FCT l\GC :.:.hc-tt 1.'-: 11 :c;olely 11 IJClscd on protected act:iv.ities _ In
other words, aJ l aut.hor.ized i_nvestigations of U.S. rersono wi.lJ
likely invoJvP. some allegatlon or possibility of illegal activity (t>.iJ., terrori~_;nt, cspi_onagc, c1ande.c;Line intelligence <tctl.vities, c~t_c.) which l_ E nul prot·cct.L:d by the Pi rst Amendment

Finally, tl1e new standard does not mean tl1at FISA pen regi :;;t.el·/t_-rct[.l and lra(_~c au+=-hority is or1ly a'\railublc on the
sub-jects of j nve::;l-tCjcn on~~. The :~.ut.hcrit-.y is avai lab.le \•:lv:-·n the·
lnEormation sougl1t: is ''releva~1L'' to the investigation, as described obovc. For example, j_nformalion concerning apparent
df->f::~ocJ_atr".S or, 01 JLdividua1E> in con:__ ,~ci__ wj_lh, the subject of .:1
lfl\/ef-;t i.'~Jdtion, :lV\.y be r·-:-~lc-,_r-1~l\.

tt:uccdqr,~~ ---'~h':!_nqee.: N::__>ne arc' r 1-.:'qllliCd. 'l-·he i'.i_eld :1\<Jy-
~..:or:Llr-,_uc tc requt':~;;t. Fr:-;r~_ pen n.::qi:::;Lc,_/tt-dp anU tt-aLE' .~lutho:;-_-lLY

t:hnJU'Jh FRIHQ in the e::---:ta.b1-Lshed manner However, the requests

rto~ n~ed on1~ c~nn\:~111 brief stale1ncr1t explair1ir1g the nacurc c>f

the invc:::>tiqu_:-:_iu;! and l-_\t?. l~elc~'!ancc' U __J that·_ lll"vr.~sltgat_ 'i::J1l of t.hc

lnf'orn,<Jticr-~ :_:;ou~-}h\- ~.1-'.rou_qh the pen register·

NSLL' Jnd OIPR '.·}i 1l

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 10 of 88

.To: 1\l.l lhvi:3.l

FTom·. Office" of the GeP..e.r,

Re: GGF~HQ Al247RG3, 10/26/2001

~~ounsel

de1reJ op dddi..t.iono.l guidance .:;t.reamli.nin] the process for requesting t.hi s autho::city·.

6 .

ChctngeB in FIS.A. Business Records 1-\u'chority

SecLiou 2lS changes the l..n.L.::;incss records authorit.y found in Title V of FTSA. The old language allowed the FISA
Court. to issue nn order compelling the production of certa.in defined categoric.~ o[ business :r:·ecords (the rr:cords oC common carricn-;, pub] .ic .:-tcconnnodations, vehicle rentals, and stot·age [uciliticE:.~) upon a. showing ot relevance and 11 specif.i_c and articuJable tacts'' giving reason to believe t:hat the person to
whom the records LL:::lated was an agent of a i:oreign power. SeC'.t:i.on 71 ~' changes t~1is :;;tandard to simple relevance (~just. as in the FISA pen register standard described above) and gives the Court the authuri. ty to compel production of 11 any tangible Lhinq~
( incl udin~-1 books r records l papers I documents I and other items fo1_' an investigation to protect against 1nternational terrorism or
clandestine intelligence activities, provided that such
investigation c1f a tJnited States person is not cond11cted solely
upon the basi~..., of act.lvi Lies prot.ecte.d by Lhe tirsL antendment t_o the Constituti..on.'1 This is the same standard described above foiSection 211 .

l_n Lh(::~ pdut , Ute FBI lla::..~ encuunL.ered 0ituc1l i_on;,; :l.rL 1.dlich tllL'~ ho·t dc:rs of I.-e levant rec~ords rP.fused to rroduce th~t1.1 cd_J~.::;cnt 0 subpoen0. ot~ ~Jther~ compelling author-Ley. VJhen those r~c·-~o.r:-ch_-; cLid IlClt· f-lt ~.,.r-i_Lh.i_r~ the def.i:lE:'d c,-;~.tcqori_es. tuc Nat.iunoi ~:;r:_:•ctn"-i':_y LL'~Ltl~~~~~; or.· Lhf~ fuu:~ categoric~_:; then defined -~n the 1-'1~~/\ Ln1Ginr;_~s2> record;; secLinn, t.hc: FBI had no means of com.pell in':::l
[J.focht\-:t Lon. VJith the llP\\1 lLJ..nc_1uagt2 the FBI ca..n seek a FISI\ c:nurt-
unJp-r- f·o.r ;-lJlY ~:;~:cl1 ITFt't:c ~--i :l.l :::; .
Pr-oce.dura1 Cllanqes: Norw on=: required. The t:ield may
contittul! t:o rr:que~Jt bt.tsi.nes::; record~:; orders Lhrou~~h PBlBQ in the established rna.nner. However, such requests may nov.: ~Jeek fYCoducLion uf o.n:z: relevant inf.orrn.aLion, {tnd need only cont_ain
information establishing such relevance. NSLU and OlPR will
deveJ.op adcLit.l onal yuidtlnCc' st C(-~Jnl.lining Lhe procesn t:or rcqucst.j ng this authoci ty.

Changeo

to

'1Primary

P

u

r

p

o

s

e

1 t

Standard

in

FISA

;.;r~ct Lons 218 and :JOtl clarity U1e 1'pr.1:nary purpose" i S~:311C' lll the: FISA sCat:utc. In i t:s prior form, the FISA required a c:crLi.fic:aL1c:-)Il that fon=:ign intelligence be '1 thc'' purpose of the 1:·eg_ues ted authoL L t y. The FI Sl\ C:ourt~ interpreted t.hi s to mean 1 hat tore i_gn i_n~_elliqerlce, as opposed to c:rim__inal prosec:ut.ioc,

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 11 of 88
J'oo 1\ll Divi.sion From: Office of the General unscl
Rc 66F-HQ-Al247bo3, 10/76/2001

had t~c- De_• tllc 11 p_;::in:ary 11 vuqJOE>C ot the rcq·.Jest.cd aul.ltcn-i_•c:_y.
Tllus, interact 1 on :::-cl..:v.'Pt:Il FR l persor:.nel involved in a FISA tJnd c:~-iminal prosecutors could call into question the primary intelligence purpose of th<C FISA (by indlcating a purpose
different [rom foreign inLelligencc) As o. resu1.L, FIST\ pleadings have ofter1 contained detail_ed accounts of all c:..Jrnmunicatlon with ccim.in::11 prosecutors in cases i_hvolving F':"SA.

Sectiort 218 changes FISA to require a certificatiotl that foreign intel_:igcnce be ''a significar1t purpose'' of the authority sought. Section 504 amends FISA to allow that personnel involved in a FISA may consult with luw enforcement officials Lo cool~rti_nate efforts to investigatP or protect against attacks, terrorism, sabotage, or cland~stine intelligence activities, and that such consultation does not, in itself, '_Jndcnninc tile rc_~quLred ccrtiticat.ion of 1'signi[icant purpos(:_' _11

Tltcsc changes are meant to al1.ow FBI agents greater latitude to consult criminal investigators or prosecutors without· puttir~ their FISAs at risk. As such, these changes address cxtraordinar.i 1 y complex L:=;suc~' t h a t have long occupied t_hc FlSA
Court and DO~J. F'BillO c:x_pect:r-; that- DO,J sl:ortl.y v:ill issue revised
policy on tl1ese lop1cs.

ll_t_:_;:~f.:'_~_LU_J_~~Li Ch,tncu"l'.: None• ,--Jn" n='qn i tT'd at r_Ycc:sent

The

fie_1d shuuld be~ avJ,JTc: th:~t: qTc=:aLe:.:- cuilsultati_on '<v.ith prosec 1.ttc)r~c;

:is now fJOSS:ible, l:Y.Jt, qiven Lhe contir-::_uing UilCCrt_ainty

f;ur~ol.Jnd-l.n~J t hest' l :~:-1\lC'o, ~~hnuld cunLim1~~~ t.o r:onn:ilnate ~->uch

r:onsuJr:t]t.icn t-_h1 .. 0l!CJh FBit-10. /\dditiL)IVl.-1 qu~_dancP \,.,·-i1l be iflsuc~d.

8.

Civ-i_] r,ia.bi..lil:y for Unauthorized Disclosure

~-;eeL-ion.~~/.·~ csLabli~-;lles civl1 liabiLity [or cp;:~La1n
Llnauthorizcd di.sclosures, inl:]_uding unauthorized disclosures ot FlSJ\ information. In 1.c:fcrence to FISA, this is simply an expansion of exist:ing civil ]lability, Ll_nd should not. signi[icant1y affect operations (since unauthorized disclosure o[ FISA infor·mation i_~-; d.lready subject to more severe crimina]
penau- ics)

Pror:cdu_r::-~.1_ Chan..s£._:?_: None arc required. UGC may l::::>S'l2 0
P.IO!T dc::>ta.i_ll:.d anaJ_ysis 'Jf th~~, pru1..risi.on at a later d<:1te.

9-

Immunity for Compliance \'lith FISA

Sertl_on 22j grants providc~s of wLrP or ~lectron12 co :Jrr.'.H~icat 10n se'C'/! c:c:, ldnd1.oL-ds, c-L:s'..:od:ans, and othe~ person:-~; ·.-,;it.h irnmunit-_·y· fl-cnl -:__·_:_'-' l_iabiLi'c:.y Co:c complying ·\·.rith the
·n'."-llliTc;tnPnt__ co cf )"1 h. Th-i:::; pl--:J'_'i.'>i·:-:n :--;-irnp~-Y cla;·ifi_e:--· '_hat:

7

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 12 of 88
,To: All Divisio1~u Frum: Of:Eice of the Gene.:ca1_ Counsel Re: 66F-HQ A12c1'18:;J, l0/26/~001

pe:-.~,()!!.'3 a.s.si.~~t_i nq tile: r:pJ. i )i ~he e:xec:ut l on c£ a FLSA o:;_~dec arc not at ri_sk of ci\ril la\oJSuits.

10.

Disclosure of Foreign Intelli~ence

Information to the DCI

Section 905 establishes an affirmative requirement, subjeCl Lo cert,::Jin e_,.~cetJLions, lLaL federal la\1>1 en[orcement components must expeditious1y disclos'2 to the Direct.or ot Centrul Int:f'lligence any- f;_J_n~i.qn incclligence acquired in the canrse of criminal i_nve.st-i,]ut:ion:c.-:. The Attorney General will, within tlle ne.xt ~Ji}: months I develop I]Uidelines to govern such disclosures.
P·coc:edu_,-_-9-_l~Gb<:tngc§.: Disclosures of forci~1n intcll igencc· to the DCI should occur through FRIHQ, using established liaison channels. Picld offices with previously undisseminated foreign
intelligence in criminal investigations should communicate the
information l~o FBJHQ. Additional guidance will be issued once t.hc Attorney General has promulgated t_he rPqui red procedures.

lL

Computer Trespass .1\rnendment to .FISA

se~·:rJ~JI: lDCJ \IWI!~_·pc:n~C1t.e;:; into FlSA ,[ def"initiun (_.~·

''c:-:mtputey t.rcspas;~' 1 establ isheci to.!:- U1e criminal la\\' in ctnotber

~;ectio:-1 ot the l\_c1

The computer: tr·-2:::.;puss language basicn.lly

allow~; th:Jt o.n un;1utltu_1·i ;'.ed i11Lr·Ltcler i_nt-.c) ,-:t CO!llpute1- GysLt-~m

(e .r3. 0. h3ckcr) ('Ur b, ::.>ubje,_-:ted to ~.>\.;.T\rc;) Llar~cF~ with t-.he

'-·un:_-;clll .c:d L.hc Y.t.'flCl oJ Uy: ~:umpu.lct- ~;y:_-;L:.c.ln J.!ld -~·Ji L.hou'..

adclit·iuna:L le-:-:Ja! dutllol-ity (before L-_Jlis ~:hangc, we typicdl.1y

wollld have had to seck a Til.le [ll in c:ri~inal irtvestigations)

Seclion 1003 i_s a l>:~c:hnicc:Ll atnendmcnt cJ.ari[yinq 1~hal thi~

language appl ic·~-; tu Lhe PISJ\ dS ·•..,'clJ

ThE:'refore I under I. he samC:<

condition::-; as arc established l.n the c~~irninal law, FlSl\ ELSUR

c1ulhority wi_l1 not· be needed to conduct survPilla.nce of a

comptlter int.rudet-.

Procedural Cl!anges: Offices thar. bel lcve t.hio new 1-J..ngua~JC u.pplies to an investigation should bring the matter to t.hc. dtJ:-_c-:.r:t.ion of FBIHQ and seck a legal opinion tram NSLU.

Qu·.____,stl9J::l:fL____0nd AdQ.itional InformaL1on

c-n_.·o.i lablc
.-::Jddition, !~<"Jf~.L·~-~d ,:_>n

The Nat:~onal Security La\·.r Unitr--,"

,-"'"''""'"'···--"-- ~=lis

to answer question.c-; about this "~Teg.lSTatlOl-1"·.----~lr:.

materials r~:::1atin<J tc, the nev.> .lesisli1lion h'ill b0 ~.he t-.JS!.U !7 83 Tn~--L~t~l-'::' 1, '-'J~b::;-:_t~:: •:Jh~.::--~:;_ ':dr: h<::.' '.-:·,:nd

~-I

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 13 of 88

~To:
kc:

All Dlvisio1. From: Olf:ice of the General ~ounsel 66F llQ-AlJ.,17C':l!~3, J.0/2C/20Cl

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 14 of 88
'fo: All Di,rision~ Prom: Office o[ the Ger1eral ,.msel
Re; 66F !!Q Al247853, 10/26/2001

:LEAD ( s)
Set Lead 1;

(I;c1m)

Oj_sseminate to persocnel ir1volved in FCI/IT operatior1s
dnd to other division pe:t-fmnne~- as app:copriat-_e.

\0

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 15 of 88

FEDERAL BUREAU OF INVESTIGATION

Precedence~ 1 f•HVIEDIATE
To: All Field Offrces
CounteJ~tcrrorisnl
Nation2tl Sectirity
From~

Date: 11/28/2001

Attn:

1-;_DIC;
SAC; CDC
FCT/IT Sllpcxvisor.s
AD I'Jatson;
DADs; Section Chiefs AD Gallagher; DADs; Sectron Chiefs

Approved By:

Muel~er Robert S III Pickard Thomas J
Parkinson I,arry R
Bo\'lflllan M E

b7C

Drafted By:

mj \•J
....•.......~ R lTr:jrl

Case ID #: 66F·HQ-Al255972

Title: NATIONAL 2,ECURITY LETTER 1•1ATTERS

Synopsis~ Prov ide2 guidance on the preparat :~on,
service ot Nationdl Security Letters (NSLs)

approval,

and

Reference: 66F-HQ-!d25o972 Serral 15

Enclosure(s):

l) Subscriber Intormation NSL Mode] 2) Toll Billing Records NSL Model 3) Electronic Subscriber Information NSL Hodel 4) E1ectronic Communication Transactional Records
NSL Model
5) Finand al Records NSL Model 6) Identity of Financial Institutions NSL Model 7) Consll!ncr Identifying Information NSL Model 8) subscriber/Electronic Subscriber (EC) Model 9) Toll/Transactior.al Records EC Model 10) Pinancial Records EC Model 11) Financial Institutions/Consumer Identity EC
~1odel
12) ECPA NSL Checklist J]) RFPA NSL Checklist

!1--&-{/:J.-
ALL ll\TFOillviATION CONTiU))!ED
DHEARTEE!lt\T/-6I-S0,UZN..CLI.\BSSYIJF£]l!'!:iD!,.td.•JJ/1· 5.tjt'f;,'}C, 1-(
c~P9&(/fb0

I I

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 16 of 88
T·o: fill F:iF~ld Oftices From: GenerJl Counsel Re: 66f-HQ Al255972, 11/28/2001
1;;) FCRJ\ NSL Checkl_ist Details: Io the referenced commu:cication, dated ll/09/2001, the D1rector of the FBI delegated the authority to certify NSLs to thP following officictls: (l) the Deputy Director; (2) The Assistant Directors (ADs) and all Deputy Assistan,t Directors (DADs) of the Counterterrorism Division (CTDI and the National Security Division (NSD); (3) the General Counsel and the Deputy General Counsel for National. Security Affairs (DGC), Office of the General Counsel (OGC); (4) the Assistant Director in Charge (ADIC) , and all Special Agents in Charge (SACs) , of the New York, Washington, D.C., and Los Angeles field divisions; and (5) the SACs in all other field divisions. The purpose of this electronic communication is to provide comprehensive guidance on the preparation, approval, and service of NSLs.
Introduction_ to Nationa~ Security Letters
NSLs are administrative subp~enas that can be used to obtain several types of records_ There are three types of NSLs. Fiest, pursuant: tc- the Electronic Commurncations Privacy Act (ECPA), 18 U.S.2. § 2'!09,_ the FBI can issue NSLs for: (1) telephone subscriber information (limlted to name, address, and length ot service); (7.) telephone local and long distance toll billing records; artd (3) electronic communication transactional records. Second, pur-sttQnt to tl1e Right to Firt~ncial Privacy Act (RFPA), 12 u.s.c_ § 141'1 (a) (5), the FBI can issue NSLs l.o obtain financial records frc1m bank:3 and other financial institutions. Finally, pursuant tC> the Fair Credit Reporting Act (FCRA), 15 U _S _C- § 168lu, tt1e FBI can issue NSLs to ~btain consumer idcntityir1g information and the identity of financial institutions from credit bur"aus.
NSLs are tools available in investigations conducted under the Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations (FCIG) The FCIG currently provide that an NSL can be issued during the course of a full international terrorism or foreign counterintelligence investigation. NSLs cannot be used in criminal investigations unrelated to international terrorism or clandestinE~: intelligence activities. Given the new statutory language, the OGC and DOJ have taken the position that NSLs alsc may be authorized in foreign counte>:rintelligence (FCI) and Lnternational t.errorism (IT) preliminary inquiries (Pis), \·;ith prior coordination through the relevant NSD or CTD unit at FBIHO. This position is based on the conclusion that all investigations autl1orized under the FCIG, including Pis, are to 11 protect agair1st international terrorism or clandestine intelligence activit les, I: as requj re.::_i by the NSL statutory authorities. At present, l1awever, issuing ar1 NSL in the contexl of a PI will require 2l
2
I~

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 17 of 88
All Field OL ces From: General Counsel 66F·I!Q·Al2S5972, ll/28/2001
.,,aiver or rnodification of Ute FCIG. Obtaining such a waivetcurrerltl)r is possible only i~ interDatio~al terrorism cases. Tl1e FCIG are be.i.ng revised, but this revision may take some time. Thus, whenever the information sought is relevant to an established full investigation, tr.e field likely wlll find ll more efficient to issue an NSL out of the related-full investigation than to request one in d PI.
2. Genera.l Po].t_s='_:{___ on the Use of NSL_l\uchority
NSLs are powerful investigative tools, in that they ciln compel the production of substantial amounts of relevant information. However, they must be used judiciously. The USA PATRIOT Act greatly broadened the FBI's authority to gather this information. Hov.,ro.ver, the provisions of the Act relating to NSLs are subject to a \lsunset 11 provision that calls for the expiration of those provisions in four years. In deciding whether or not to re-authorize the broadened authority, Congress certainly will examine the manner in which the FBI exercised it. Executive Order 12333 and the FCIG require that the FBI accomplish its investigations t.hrough the 11 least intrusive 11 means. Supervisors should keep this in mind when deccding whether or not a particular use of NSL authority is appropriate. The greater availability of l\SLs does not meun that they should he used i:-1 every case.
In addition, tl1e removal oE a11y rcquircmenL tor FBlHQ coordination in the issuing of NSLs c::_·eates the possibility ot duplicate requests for the same information by different fie]ci offices. Field offices must take steps to avoid this. I11 particular, the field should check FBI databases (ACS, Telephone Applicati.on, etc.) and open sources to see if tt1e information sought has already been obtuincd by the FBl or \':he~her il c•O publically ava1lable. This is particularly important when considering issuing NSLs for telephone or electronic communications data under the Electronic Communications Privacy Act (ECPA). Unlike Lhe criminal authorities in ECPA, the NSL authority does not require the government to reimburse carriers or Internet Service Providers (ISPs) for the cost of producing the requested information. A dramatic increase in duplicate NSLs v;ill only augment existi.ng pressure to require governmenl.a1 reimbursement.
Individual field offices have the responsibility for establishing and enforcing an uppropriate review and approva~i process for tt1e use at NSL authorities.
\~

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 18 of 88
'(o: All F_i=:ld Off:lces From: Genera] Counsel Re: 66F-HQ-Al255972, 11/28/2001
3. The Me-~hanics of Producing NSLs
For all Lypcs of NST~s. the issuing office needs to prepa1·e two documen·cs: (l) the NSL itself; and (2) an EC approvin9 the NSL and documenting the predication. rqodel NSLs apd ECs for all variations of the three typPs of NSLs are included as attachments to this communication. These materials will also be placed on the NSLU In•cranet l'iebsite and will be distributed by Groupl'lise e mail. Once the initial implementation uf these new authorities i.s accompli:;hed, NSLU will work to dc'velop u mucro or form to further streamline the NSL process.
A. The NSL
There ilre preser1tly seven variations of the three NSL types: l) subscriber information; 2) toll billing records; 3) electronic subscriber information; 4) electronic communication transactional records; 5) financial records; 6) identity of financial institution~;; and 7) consumer identifying information. This
section wil:_ discuss tl1e features that these variations share ln
common ilnd highlight the differences.
All NSLs must be addressed to an appropriate company poirot of contact. NSLU wi11 place Cl list_ of known points of contact on its intranet: website. HO\\rever, the responsibility for ensuring that the company point of contact is up to date belongs to the drafting Ueld division. F.celd divisions should advise ·NsLU of any new poirtts of contact, or when a partjcular point of contact i.s no longer valid. Please note that the company point ot contact address docs not: include a :.c>:ip code, because NSLs must be hand-delivered.
The tirst paragraph of every NSL provides the appropriate statutory authority for the request, identifies the types of records requested, and provides available identifying inforrnatior; so that the company can process the NSL request. It is this first paragraph that contains the differences that warrant the seven NSL vc..rieties.
Subscriber and electronic subscriber NSLs should have a specific date for each of the phone numbers/e-mail addresses requested. Typically, the specific date is going to be the date that the phone number or e-mail address was used in communication with the subject of the investigation_ Any phone numbers identitied in a subscriber request should contain all ten digits of the phone number, including the area code.
Toll bi] 1_ j_ng record and electronic co[nmunicat io~1 trar1sactional record requests should have a range of 6accs for
4

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 19 of 88
To: All Fi2ld OfL_ces From: Geceral Counsel Re: 66F-HQ-Al255972, ll/2B/2C01

each of the phone numbers/e-mail addresses requested. The datce range may be from inception to present, or some other specified date range L·elevant to the investigation. Any phone numbers identified rn a Loll billing record request should contair1 all ten digits :Jf the phone number, includin':j tf1e area code.

Financial record requests should include all available identifying intorrnat-lon to facilitate the financial institution 1 :J records search. Typically, such identifying information includes: name, account numbers, social security number, and date of birt_h. The time period for financial record requests l3 typically fr·or,J inception of account(~>; to p:·esent, although a more specific dette range may bP. used.

Credi l~ reconl r-equest!::> CJre sir:1ilu.r to financial requests in that they should inc]ude available 1dentifying information to facilitate ~~he credit agency,s records search. Typica.lly, such identi_fying information includes: name, social security numbe1~, and da~e of brrth. There is no need to specify a date range for credit record request.s because these requests seek all record~; where the c~nsumer maintains or has maintained an account.

The se:::ond paragraph of every NSL contains the statutorily

required cer~ifica~ion language. The certification language rs

virtually identical for every NSL. However, please nole tltal the

cerlificatian language used i11 the financial records NSLs 1s

slightly diEferent than the others in that it states 1'the recc>rds

are sought tor fo~~eign counterintelligence purposes .

11

Financial r·::::C(_n:ds aJso conLain an addilional certification that

the FBI has complied wii-h a11 applicable provjsjons ot the RFPA.

Use of the model NSLs will ensure that the proper certifications

a_re made.

The next paragraph contains an admonition for the phone company, ISP, financial institution, or credit agency receiving Lhc NSL. T:1c pc_-nagraph warns that no officer, employ2e, or a~rent of the company may disclose that the FBI has sougt1t or obtaiilE!d access to t~e requested information or records.

Tr1e last sullslanL.ive pardgraph 1nstructs the company pornt of contact to provide t!1e records personally to a representatj_ve of the delivering field divisron. It also states that any quest.ions sl1ouJd be d:i:cected to the delivering [ield division. This last paragraph ,-equires the person preparing the NSL to inpuL the a~propriate delivering field division in two places.

The model NSLs for financial records and electronic communicati·Jn transactional records each have a separate attachment. These o_ttuchments provide examples of information

5

15

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 20 of 88
?o: All Fi2ld 0~ ~ccs From: General Counsel Re: 66F-HQ-Al7~~972, ll/28/2001
which the company might cor'-sider to be financial or elect.J:-Oilic communication transactional records.
Finally, the NSL is an unclassified document because it does not detail the specific relevance of the requested records to an authorized FBI investigation. There is no need to classify the NSL when attaching it to the cover EC~
B. The Cover EC The Ccver EC serves four essential functions in the NSL process: (1) it documents the predication for the NSL by recording why the information sought is relevant to an investigation; (2) it documents the approval of the NSL by relevant sc_pervisors and the legal review of the documcnti (J) it_ contains t:t.e information needed to fulfill the Congressional reporting requirements for each type of NSI.; and (4) it trans,11.its the NSL to the requesting squad or delivering field division for delivery to the appropriate telec::>mmunications carrier, lSP, fin~ncial institutjon, or credit agency. There are four vuri_eties of model ECs provided with ~.his communication: (1} subscriber;elcctronic subscriber information; (2) toll
hilling/ elE:ctronic commu!"licat ion transactional records; I3 I
financial 1·ecords; and (4) credit i.nformation. When prepar·i~g ar1 NSL request., the field should use one of t-:.he.sf-: model ECs, giving special cortsideration to the elements discussed in this section.
l) Field Descriptors This section will generally explain how most of the EC field descriptor~; should be completed. The ''Precedence" descriptor wi1] typically be ''ROUTINE. n The ''Date'' descriptor should reflect the date the NSL and the EC were approved. The "To" descriptor will always include ''General Counsell! and the requesting squad's field division. It may also include t:he name of the delivering field division (always Los Angeles in the case of FCRA NSLs) and the office of origin, if applicable~ The ''Attn'' descriptor should include ~he name of the Chief, NSLU, and the squad llupervisors and case agents from the requesting squad, delivering field division, and office of origin, 1E applicable and if known. The credit model EC identifies the FBI personnel working on Squad 4, Sar..ta AnJ RA, who are currently responsible for the se:cvice of FCR.Z\ NSLs. The 11 From 11 descriptoJ:: should identify the cert1fying official's field division, and include the title of the certifying official. The 11 Contact 11 descriptor should reflect the name and phone number of the requesting squad case ager1t. The 11 Drafted By'' descriptor should reflect the r1ame of the pcr;on who prepared the NSL package~ The ''Case ID #'" desc.:..-lptor _!llqst :_'ontain t-:.he cu.sc fi::._c !1U~nl.Jc:c rele-,'~lnt tcJ lhe
6
lfo

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 21 of 88
fo: All Field 0 cos F:c-om: General Counsel Rc: 66F-HQ-Al2~:J';;i 72, ll/28/2001
··-~

request, and the case _f i._ le Wl!~l.bc:rs indicated in the model EC.

The 11 Title 11 descriptor should list the subject 1 8 name, any known

aliases, whether the investigation is an FCI or IT investigation

directed at a particular foreign power, and identify the office

of origin, e _g _ , 11ILLIM1 BADGUY, AKA BILL BADGUY, FCI- IRAQ, 00:

NE\,1 YORK. The "Synopsis" descriptor should use the standard

boilerplate contained in the appropriate model Ec: The "Derived

From" descriptor should be "G-3" in bold typeface_ The

11 Declassify On"

descriptor should be

X l 11

11

in bold

typeface.

t::.he

11 Full Investigation Instituted 11 descriptor should contain the

date U1e [ull FCI or lT investigation was opened on the subject

and indicate whether the subject is a U.S. person. Please note

that the word "Field" has been deleted from the field descriptor

contained in the c;tandard EC macro. In the unlikely event tha.t

an NSL is issued during a PI with prior FBIHQ approval, the field

descrJ plor should be edited to stale 11 Preliminary Inquiry

Instituted. ll The remaining descriplot~s can be filled in

according to the model EC being used.

2)

Prcd i_cut ion and Relevance

The USA PATRIOT Act has greatly simplified the NSL process. The FBI offic.ial authorizing the issuance of an NSL is no lonqer required to certify that there are specific and articulable facts giving reason to believe that the information sought pertains to a foreign power, or an agent of a foreign power. NSLs may not.v be issued upon a certification of relevance to an authorized investigation to protect against international terrorism or clandestine intelligence activities.

l\ccordingly, the first paragraph in the "Details" section of the EC should contain the predication for the full investigation and identify the relevance of the requested records to the investigation. Both the predication and relevance should be stated clearly and concisely. Th2 predication should track with the predica tee; contained in FCIG, Section I I L C. 1. For example, the predlcation might state, ''A full foreign counterintelligence investigation of subject, u Non-U.S. person, was authorized in accordance with Lhe Attorney General Guidelines because he may be a suspected intelligence officer for the Government of Iraq." Another example might state, nA full international terrorism investigat_ion of subject, a [J.S. person, was authorized in accordance vJith the Attorney General Guidelines because he may he engaged in inte~nationa]_ terrorism activities by raising funds for HANAS.,.

The relevance requiremenc ties the requested records to the appropriate full investigalion. For- example, relevance could ~c est~blishe~ by slating, 11 Tl1is subscriber information is being

7

l'l

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 22 of 88

to: All Field OfL~ces From: General Counsel

Re: 66F-HQ-Al2559

ll/28/2001

L·equested to deterr.1ine the jndividuals or entities that the subject has been in contact with during the past six months.'' .l\.nother example might: state, "The subJeCt's financial records arc being requested Lo de Lermine his inval vement in possible HA_,_l\1A,:3 fttnd raising activities."
3 I .1\.pproval
The second paragraph in the 11 Details 11 section and the "Approved l:!y" descriotor field of the EC should reflect the level of the official appr;ving the issLancc of the EC and signing the NSL's certification. Prior to certification, every NSL and cover EC issued ty the field division should be reviewed by the squad supervisor, the Office of the Chief Division Counsel, and the .1\SAC. Lawyers reviewing NSL packages should use the checklists provided with this communication to ensure legal sufficiency. The last step in the approval process occurs when the certifying official (neputy Director, ADs, General Counsel, ADICs, DADs, DGC, or SACs) personally signs the NSL and initials the EC. Certifying officictl.s may not further delegate signature authority.
4 I Reporting Requirements
NS.LU \"/ill conl i nuc to pl·eparc lhe mandatory report~~ to Congress r_·equi red f:or edch NSL type. To ensure tho.t NSLU receives sufficier1t information to prepare these reports, 1t is criticJI that the person preparing the NSL package follow the NSL and EC mudel;:; \ie1·y care(ully. The BPcond }f~ad in every model EC requests- N~LU to '1 reco::.-d the appropriate information needed t·:J fulfill the Congn:ssional reporting requirements for NSLs." NSLU will be able to cump:Lle the reporclncJ data provided t:hat the cover EC .ir.cludcs the case file tTJmber, the subject l s U.S. pert-Jon status, the type of NSL issued, and the number of phone numbers, e-mail addresses 1 account numbers, or individual records being requested in the NSL. Once NSLU has entered this reporting data into its NEL database, it will clear the lead set in the cover EC.
c) Transmittal
Often, the sque1d requesting the NSL 1,;ill be able to handcarry the NSI, locally to the approprlate company point of contact. However, in many sitllations, the field division drafting the NSL 1-1ill have to get ltc delivered by another field division. In these situations, the drafting division shoul_d attempt to .identify the squad and personnel at the delivering field divi.::,ioE who will be responsible for delivering the NSL. rn t.f1e event LhaL the ut.f_ic:c of origin is d_lfferent than cith::::t
8

I~

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 23 of 88
to: All Field Of[ices From: ~-,neral Counsel Re: GGF-HQ-Al25597?, 1J/28/2UG

the draftin-3 division or delivering division, the person drafting

the of

NSL orig

package shou in Deceives a

ld ensure copy of

th the

at p

a

the cka

cas ge.

e

ag The

ent fi

r

fro st

m the lead

i

of n

J:ice the

model ECs s·~ould direct the requesting squad or delivering field

division to deliver the attached NSL. If the delivering division is differenc than the drafting division or the office of origin,

then this to submit of origin.

first lead the results

should also request the delivering division to the drafting division and/or the office

Some field divJsions may, for a variety of reasons, opt r_ot

to exercise their delegated authority to issue NSLs. Other field

divisions may exceed their capacity to issue NSLs and sePk

assistance ~n handling the overtlow. NSLU w1ll continue to

process any NSL request that send their requests directly

it to

receives. NSLU, with

Field divisions should information copies to

the FBIHQ Stlbstantive unit. Sucll reqnests must contain all t1le

information identified in this communication as necessary to

prepare the NSL package. NSLU anticipates that it will be able

to process such requests within one to three business days.

b7C

9

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 24 of 88 fo: All Field Oft:.ces From: Ccnc~aJ Cour1sel
Rc: GGF-HQ-Al25~9/2, ll/28/2C01

LEAD (a) :
Set Lead l:

(Adm)

D:stribute to all supervisory personnel involved in the National Security Letter process.

\0
~0

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 25 of 88

FEDERAL BUREAU OF INVESTIGATIOI\1

Precedence: ROUTINE

Date: 03/29/2002

To: Counterterrorism
Counte~rintell_igence

Attn: Section and Unit Chie·fs Section and Unit Chiefs

From: Offi.ce of the General Counsel

National ruri_rc;)'~o' Umt_j·NSLU) /Room 7975 Contact:

.. .. -~- ~--~---~

Approved By: Bov1man M E ~\fj lliarns l:rctf

b7C -I

Drafted By·

Case ID #: 66F·HQ-Al247B63 (Pencl.ingJ
Title: PRO:EDURAL GUIDANCE RELATED TO NEvi FISA PEN REGISTER AUTHORITY
Synopsis: :oummarizes FISA pen registet·/trap and trace authorities and reiterates procedures for requesting such authority.

Reference: 66F-HQ-Al247863 Social 70

Administra·t:i.ve ·: This is a pri vilP:ged FBI atto:n1ey communi cat ion; do not circt\late out. side the FBI 1JJithout the permission of OGC. Details~ CLanges to FISA pen register/trap and trace autbcn·.i.ties under the 1'l,BA Patriot Act,, vJere summarized in the above referenced electronic communication. In response to requests for clarification of procedures relating to requests for PISA pen register/trap ar1d trace authorities, the National SecLrity Law Unit (NSLU) is providing the following guidance. I. _1_egal~fu1§..is_ for Initiation of FISA Pen Regi~ter/T_rap and Trace
Th~::: 11 USA J?atriot Act 11 cevised the 1ega1 standard for initiating a FISA pen register/trap and trace.' These Orders are .now avuj lablt:-: 'dhenevcr the FBI certifies that !I the information likely to be obta1ned is fore1gn intelligence information not concerning a United States person, or is relevant to an ongoing investigation to protect against international terrorism or clandestine int-elligence activities/ provided t.hat such investigation of a United States person is not conducted solely

1 50 U.S. C. f I R42

;<J

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 26 of 88

'lL:l: Counterterrorism From: Office of the General Counse>]

Re: GGF-!IQ-Al24786J, 03/29/2002

"

upon the basis of activities protected by the First A~endment to the Consti:ution. ~~~
Use of Lhis technique is author1zed in full investigatlons properly opened under the Attorney~General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations (FCIG). The FCIG require that full fore:c1n counterintelligence investigatlons be personally duthorized by the relevant sp~~cial A<Jent in Charge, or Assistant Special Agent _in Charge with exclusive responsibility for a specific forei:-}n counterintelligence pro~1rarn following written notification to FBIHQ.

No procedural changes were required as the result of
revisions mude by the 11 USA Patriot Act. 11 Requests for pen register/trap and trace authority should be submitted with an
appropriate letter head memorandum (LHM) to the Counterterrorism
Division (CTD) or Counterintelligence Division (CD) unit with management responsihility for the program. The approval of the Unit Chief, Section Chief, and Assistant Director with oversight responsibility is required on the file copy of the LHM. The cogni:.:ant unit will Eorwarcl tlHe LHM to the NSLU, Office of the General Counsel, fOJ legal review. Following approval of the
request, the CTD or en unit will forward the LHM to the Office of
Entelligence Policy and Review, U.S. Department of Justice, whic!1 toe• .ill prepare t.bc filing and submit it to the FISA Court. A CTD or CD Super,risory Specia]_ Agc11t w_ill be the affia~t verifyir1g tl1c
[actual content of the application.

The follov:ioq infO"nnation should be included in Lhe LHM: the nc.me of subject; field office, case agent, point-ofcontact information; type of authority requested (pen
register/trap and trace}; whether it is an original request or a cenev..ral; a lisL of the telephone numbers or other communication devices that 1vill be covered by the order along with carrier information; and a brief statement explaining the nature of the! iuvestigation and Lhe relevance to lhat investigation of the information sought through the pen register/trap and trace.

NSLU and OIPR plan to develop additional guidance to

further stre~mline this process. Questions relating

these

~~~~~ gix~~~J to Assistant Genera1 Counsel

Lr.C..i"UJ I. s) :

b7C -I

2 50 U.S.C. ~ l842(a)(ll

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 27 of 88
':Co: Counterterrorisn1. From: Office of the Ge!1era1 Ccunse~ Re: 66F-HQ-Al247863, 03/29/~002

Set Lead 1: (Adm)

ALL RECEIVING OFFICES

Distribute to relevant personnel involved in FCI/IT investigations.

CC:

+~

1 - Mr. Parkinson

1 Mr. Bowman

l

NSLU Attorn~ys

;<3

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 28 of 88
Documents released by letter dated January 16, 2003

OP<'A-:f; (R-1 J.rJS) Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 29 of 88
' '
lJ.S. Dcpar·tmcnt ,,. Justice

Federal Dureau of Investigation 935 Pennsylvania Ave., N.\V.

\Vashington, D.C. 20535-0001

Ms. Ann Beeson

January 16, 2003

American Civil Liberties Union Foundation

125 Broad Street

Subject of Request: --'-------

New York, NY 10004-2400

FO!PA J\'o. 96 6 7 50

/190-

Dear Requester:
Enclosed are copies of documents from FBI n:~cords. Excisions have been made to protect inform::ttion exempt from disclosure pursuant to Title 5, United States Code. Section 552 (Freedom oJ Information Act) and/or Section 552a (Privacy Act). In ::~dclition, where e:-<cisiom \\Tl"l' made, the appropriate exempting subsections have been cited oppDsitc the c\c!ctions. \Vhne pages have heen \\'Jthlwld in their entirety, a deleted page information sheet has been substituted showing the reasons or basis fllr the deletion. The subsections cited for \\'ithholding information hom the enclosed documents are marked bclO\\

Section 552

Section 552a

0 (b)(!)
0 (b)(2) 0 (b)(3)
0 (bl(4) 0 (b)(5) 0 (b)(6)

0 (bi(7)(A) 0 (bi(7)(B) lSI (bi(7)(CI 0 (b)(7)(D) 0 (b)(7)(EI 0 (b)(7)(f) 0 (bi(S) 0 (bl(9)

0 (d)(5) 0 (J)(2) 0 (k)(l) 0-(kl(21 0 ikl(3 I 0 (k)(41 0 Ikl( 5I 0 (ki(GI 0 ikl(71

(Sec Form OPCA-16a, enclosed, for an explanation of these exemptions.)
Pursuant to you1 request. -""1~4c____ _ _ pages(s) were _re\·Jewed ;md _ --~1~4~--- p;~gt'( '>! ilrc being released.
During the rcv1ew of material pertinent to the subject of your request, documents were located which
D originated with another Govemment agency(ies). These documents were referred to that agency(ies) for review and direct response to you.
D contain information furnished by another Government agency(ics). You will be advised by the FBI as to the releasability of this infornution following our consultation with tile other agency(ies).

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 30 of 88
0 Ir you tksire, you may appeal ::my dcniols contained herein Appeals should he: dircctt·d 111
writing to the Co-Director, Office of Information and Privacy, U.S. Department of Justice, 1:1ag Building, Suite 570, \Vashington, D.C. 20530-0001 within sixty days from receipt of this letter. The envelope and the letter should be clearly marked "Freedom of Information Appeal" or "Information Appeal." Please cite the FOIPA number assigned to your request so tlwt it may be easily identified.
D The enclosed material is from the main im·estigative Cile(s) 111 which the subject of yout· rcquL'Sl was the subject of the investigation. There arc additional references to the subject(s) of yout request in files relating to other individuals, orgamzations, events or activities. These additiuncd mentions or references have not been reviewed to detennine if, in fact, they arc identifiable with the subject(s) of your request. Our experience has shown that such references are frequently similar to information contained in the processed main flle(s). \Ve will process these references if you now make a specific request for them. However, because of a significant increase in fOIPA requests and an expanding backlog, we have given priority to the processing of main investigative files and can only complete the processing of these additional references as time and resources permit.
KJ See additional information \Vhich follows.
Sincerely yours,
~L.1 ("\. cJll~ \LJ.<l.u
Chief f-"recdom of lnformation-
Priv<~cy Acts Section Office of Public and Congressional :\ITairs
Enclosures (3 )
This letter supplements our prior responses of November 4, 2002, November 14, 2002 and November 20, 2002.
Enclosed are 12 additional pages which were subsequently located and are responsive to request numbers 2-6 in your letter dated August 21, 2002.
The FBI previously asserted exemption (b) (1) to protect the records sought in request numbers 11 and 12 in thai:' the mere fact of the existence or nonexistence of responsive records is, in and ot ltselt, classified. Upon further review the FBI has determined that vie are ab~e tc address request numbers 11 and 12. Ylaterial which appears to be respo:'sc.ve to request number 12 is maintained in our computer system and we are unable to access it at present. As soon as we are able to gain access to this material it will be processed. We are making every effort to retrieve this information as expeditiously as possible. However, please be advised that we anticipate that the information will be withheld 1n full pursuant to exemption (b) (1). No information responsive to request number 11 was located.

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 31 of 88

Top_of document. ).1/22/02 08:00:29

View Document Text

Case ID : 66F-HQ-C1364260 * Responses

Serial : 1

Precedence: ROUTINE To: Information Resources

ECFVTUHO More : +

From:

Office of the General Investcc' yctLlcV<

Counsel

7326 ~ ext . .._.,-

Approved By:

Conunand
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Fl5=Prev0oc

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 32 of 88

111~-102
'os:o0:37
Case ID Responses

View Document Text

ECFVTOMO
More : - +

66F~HQ~Cl364260

*

Serial : l

~~~~~~~~~~~~~~~.,\:.~~~~~~~~~~~~~~~~~~~ ~~ ~~~~ ~~~~ ~~-

Drafted By: Case ID #:

66F~HQ~Al085154

b"\v

Title:

Investigative Law Unit New File Number

USA Palriot Act

Synopsis: Investiga

ti

Reques ve Law

t

opening of Unit's (ILU)

a

new control Control File

file for the to be captioned

"USA

Patriot Act."

Details:
Corrunand Fl=Help

ILU is

.

>

F3=Exit

providing
... .. ... .. F4=Prompt

significant guidance to

. . . . . . . . F6=Multv

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Fl4=List FlS=PrevDoc

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; ~-
Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 33 of 88

11/22/02 08:00:40

View Document Text

ECFVT0~10
More : - +

Case ID : 66F-HQ-Cl364260 *

Serial : 1

v~ IIaPLn~ apaUR~ rpt- ioerro- srriou- pedop- soqetr- nuri- mAsae- ettsaco- settt- st.- b"ed-troe- hsct-aAtu-ertm- lerl-ela- ancd-tnato- eaepc- twduti-uom-ntrc-oeeo-ncn-ttto- tahhr- lteeoli-oel-wnrc-efto-eciar-lndke- edn-atf-crlbo- oyecp- .moi-emon-npoi- poaet- lnhnci-ssete- ehdr- dews-de- rUwni-oStt-inAti- letl- lntP- ehba- dibet- syr-i"fm oUii LlStae-UAtA-dt-eac-nrit-,.nd- - - - - - - - - - - - - - -

this control file.

. . b:). -l ~ to

Any Assistant

question General

s C

regard~ould
ounsel ............... at

be ext

e

direct nsion

e

d

LEAD (s) :

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Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 34 of 88

11/22/02 08:00:50

View Document Text

Case ID : 66F-HQ-Cl361260 * Responses

Serial : 1

Set Lead 1: (Adm)

INFORMATION RESOURCES

AT WASHINGTON, DC

It is requested that the Investigative Information Processing Unit open a control file captioned "USA Patriot Act."

ECFVTOnO
More : - -t

1 - ILU

Command
Fl=Help

.

. >

F3=Exit

..... ... ............... ............ ..................... .... F4=Prompt F6=Multv F7=Bkwd FS=Fwd Fl2=Cancel Fl3=Attrib

+

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f:.

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 35 of 88

ll/22/02 07:56:49

Vi"-"' Document Text

ECFVTOMO
Mo1:e : +

Case ID . : 66F-LR-C41239

Serial : 1

-

Responses
----------

-

:
-

---

-

-

-

--

-

-

-

---

-

-

---

-

-

---

-

-

-

--

-

-

-

---

-

-

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-

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-

--

-

-

-

---

-

-

---

-

-

---

-

Precedence: ROUTINE To: Little Rock

Attn:

Date: 07/29/2002

From: Little Rock

Approved By

Drafted By:

Case ID #: 66F-LR-NEW {None)

Command
Fl~Help

. .>
F3~Exit

..........
F4~Prompt

.......
FB~Fwd

...........
Fl2~Cancel

...... · . - -
Fl3~Attrib

-·---· · · ·
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·

·

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·

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-

·

·

·

·

·

·

+

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 36 of 88

11/22/02 "07:58:31
Case ID Responses

View Oocumer. _~_'ext
Serial : l

IO:Cl'VTUHU !"lore :

Title: USA PATRIOT ACT - CONTROL FILE

Synopsi various

s: l

e

To gis

request lative r

e

a control porting r

file be o equirement

p s

ened to in the

track the USA PATRIOT

ACT.

D pLostirtfemeaogttcveaiu.eisistlrliesatLo:atniiistvnsot"eBlestehapc(actaRehuttcooiscioesikfnetict)eh,scmeeaipnnFtlUBvotSIreyHoAeseQpteeiPsogAxrreaThptqRtaiiruvItvOeoeeTesoCtbeAnteoedCencTDnghaerncclieoinelsqmnssuOttbareaefuisrtfnciec3attdhee1usd,etmh2taoatoon0pry0ipz6trrre1,e1oaSdppcwuorkbniirytasthtethoettthehueitus se

~ornrnand
Fl=Help

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.................. FS=Fwd Fl2=Cancel

........... Fl3=Attrib

· .· .·· · ·· Fl4=List

·

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·

.

+

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 37 of 88

BOttom of document. 11/22/02
"07: 58:48

View Documer.t Text

ECFVTOMO More : -

Case ID

: 66r~-LR-C41239

Serial : 1

u- c- soRe-n- eto- sr~ pof ~ ol- tnh- sfe- ei lss-ee--- tae- nc- dh-- nd- oiq-- ut- he- es-.-n-e-Ac-et-s-ps-ar-er-ys-e-nr-et-,p-o-tr- ht- ei- n- gC- D.- C-- w-i-l-l-- m-a-i-n-t-a-i- n-- t- h-i- s---------------

LEAD (s): Set Lead 1: (Adm)
LITTLE ROCK AT LITTLE ROCK Create a control file as set forth above.

Command
Fl=Help

. > F3=Exit

.......... F4=Prompt

........ F7=Bkwd

........... Fl2=Cancel

......... Fl3=Attri

.. b

... · . · . · Fl4=List

·

·

.

·

·

·

·

·

·

·

·

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+

3o

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 38 of 88

View

Case ID : 40-MD-C530

View Document Text

Serial : 1

Precedence: ROUTINE To: Investigative Services

Attn:

Date: 06/20/2002

From:

Madrid Contact:

A/ALAT

Fl~Help FS~Fwd F12~Cancel F13~Attrib F24~Prt/Dnld

More +

..ll
\
3J

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 39 of 88

ECFVAlMO

t Attributes

ECFVT2MO

View Document ~ext

More - +

Case ID : 40-MD-C530 Approved By: Drafted By:

Serial : l
==--------------------------------------------
\JI\V.\

Case ID #: 40-MO-C530 {Pending)

Title: VISA APPLICANT NCIC CHECKS

Synopsis: Opening of control file for U.S. Visa and passport matters.
Fl~Help F7~Bkwd F8~Fwd Fl2~Cancel Fl3~Attrib F24~Prt/Onld

I '
J
~

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 40 of 88

View Document Attributes

ECFVT2MO Case ID : 40-MD-C530

View Document Text

Serial : 1

More - +

Reference:

PATRIOT ACT and Department of State (DOS) cable,

dated 5/24/2002.

Details: With the passage of the Patriot Act, all DOS posts worldwide are required to conduct FBI NCIC traces on all visa applicants. A DOS cable, dated 5/24/2002, stated that beginning June l, 2002, FBI records were being added to the DOS' CLASS.

The appropriate DOS personnel will now be required to

Fl~Help F7~Bkwd F8~Fwd F12~Cancel Fl3~Attrib F24~Prt/Dnld

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 41 of 88

View Document Attributes

ECFVT2MO

View Document Text

!'-1ore ~ +

Case ID : 40~MD-C530

Serial : l

fingerprint any individual who is record in the CLASS system. Upon personnel will receive criminal h

a positive match on any positive confirmatioD, istory information from

FBI the the

DOS FBI.

If the subject matches a FBI record for a wanted person,

foreign fugitive, or member of a violent gang or organization an immediate EC must be sent to the

Lerrorist SIOC and

concurrent notification given to the RSO. The Legat and the

RSO

would then determine the appropriate action.

Fl~Help F7~Bkwd FB~Fwd Fl2~Cancel Fl3~Attrib F24~Prt/Dnld

•
3

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 42 of 88

ECFVT2MO Case ID : 40-MD-C530

View Document Text

LEAD(s):

Set Lead 1:

INVESTIGATIVE SERVICES

AT WASHINGTON, DC

For Information

Serial : 1

F1~Help F7~Bkwd FB~Fwd F12~Cancel F13~Attrib F24~Prt/Dnld

More - +

5

JS

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 OPlJaTgeo4F3 o5fC8O8PE,,

Brown·- ~-~E~:ie· E (OLt\) - ·--. .... -_,.,_,. ~-~' ·'· ..,.,..0"-'~''-:--~·~~-_. '"~

:-:·rort;:
Sen~~
To: Subject:

O'Brien, Pat Thursday, Seplembcr 05, 2002. 5: d Pi-.11
B1·own. JarT1ie E (OL.b,)
FV\f:

pa
r.c

st
ad

ODAG
y. l

L

here (Wray or hink. 1.cJe

is the :ollov.! up Laufman) and the
shot.lL::"1 consideL p

info AG's uttin

from offi g it~

FBI ce ! ir·. a

on the lin Taylor and
le:ttQ:e Sll

guists. vJe should Susan Richmcndl.
pplementing our ans

run 0nce ·... e(s

.

tl: 5t

i

s i

s

·· ··---Original Mess,;jqe- ·· ---Frcm: Sleni l<al:i.5ch. [mailco Sent: Thursday, Septembe:t To: 0 'sr.i en, l?a.t
3ubject:

Pat.;
~ttached are responses co Patriot ~ct Section 205(c} regarding translators.

:Sleni
Brow Jamie E

ro:·~ E'EI.;:om::(Q~~
pex D! Pf2

F(om:
Se-nt:
ro: Cc,· Subject:

2002 1:ll9 PIVi r'~rh~m, Paul P; Eisenberg, John
Pat; Brown, Jamie E (OLA); Bal<er, James; Bryant, Dan
for Sensenbrenner meeting today (9/4)

fv'iy comments:

-- David

·ol!l5103 WEDC1a1s:e531:F0A2X-c2v02-02S0H771-0E09SH Document 20-5 Filed 03/07/03 Page 44 of 88
-"'ril"l be ready -·- a.nd vhether they can get the information no\J, Please let me know if/when we can provide answers to the above. Thanks, Pat

i4J003

Pat O'Brien Depucy Assistant ~ttorney General Office of Legi9lative Affairs U.S. Dept. of .Justice
phone 12021 616·6H6
t<n 12021 514-91<> Pat . Q' e. r i E: n''l. u sdo j .go·J

rrom:

Sent:

To: Cc: Subject

HJC tetter

~-

..

FG:.\ E.'(H.\i'TlONLb)(<.,)

.,d,~c._.._.-·---------

Pif OIPR..

Patrick.

at FBI Congressional Affairs received the letter to HJC and has given itlo Spike Bowman for commenl.
Senate and House Judiciary and is Acting Unit Chief in the absence of Eleni a n . _ . His
..f----__ r~H,\ m;,;rn~fL}c)_;~ i=E:>"I~ .

From:
Sent:
To:
Cc: Subject:

Brown, Jamie E (OLA)
RE: Status of draft. response to Sesenbrenner subpoena threat

Thanks. -Dnglnol Message-

\

,ru·1r1~:t• rv~•r·.~t.•.:l'Tl·';wf_,,'\~f r~.::)'-

/

pCY Ot PI<..

STfreoon:mt::: Cc: S:ubjett

.12 ,~,, 1\ug-. 8, lOOZl:l P

"K'r"1s":* "Da"v"id'

7 H

l)(yant Dan; Kelty, P•blcl<; Brown, Jamie E (OlA)

Status of d"'~ ""1">""' to Sesenbn:nn« subpoena th•e•t

37

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 45 of 88
Documents released by letter dated January 31, 2003

OPCA-l(J (S-11-98) Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 46 of 88
U.S. Department'-'- causticc

Federal Bureau of lmTstigation 9~5 Pcnnsylvwnia An~ .. l\'.W.

------------- ---------------

Washington, D.C. 20535-0001

Ms. Ann Beeson American Civil Liberties Union Foundation

January 31, 2003

125 Board Street

Subject of Request: _.~---------

New York, NY 10004-2400

l'OIPA No. 966750

il90----~

Dear Requester:
Enclosed are copies of documents from Fill records. Excisions have been made to protect information exempt from disclosure pursuant to Title 5, United States Code, Section 552 (Freedom of Information Act) and/or Section 552a (Privacy Act). In additio_n, where excisions were made, the appropriate exempting subsections have been cited opposite the deletions. ·where pages have been withheld in their entirety, a deleted page information sheet has been substituted showing the reasons or basis for the deletion. The subsections cited for withholding, information from the enclosed documents are marked below·.

Section 552

Sertion 552a

[l<;] (b)( I)

0 (b)(7)(A)

[l<;] (b )(2)

0 (b)(7)(ll)

0 (b)(3)

- - - - - - - - 0 (b)(7)(C) 0 (b)(7)(D)

IZJ (b)(7)(E)

- - - - - - - - --~~--~0 (b)(4)

0 (b)(7)(F)
0 (b)(8)

lZl (b)(5)

0 (b)(9)

0 (b)(6)

0 (d)(\) 0 (J)(2) 0 (k)(l) D (k)(2) D (k)(3) 0 (k)(4) 0 (k)(5) 0 (k)(6) 0 (k)(7)

(See Form OPCA-16a, enclosed, Cor an explanation of these exemptions.)
Pursuant to your request, --"4'"1'----- pages(s) were reviewed and _____±_l___ ,__ pagc(s) are
being released.
During the review of matnial pertinent to the subjcct of your request. documents were located which
D originated with another Government agency(ies).
These documents were referred to that agency(ics) for review '-t!ld dlrcct response to you
0 contain information fumished by another Government agency(ies). You \\·dl be advised by the f'BI as to the releasability of this inform:1tion following our consultation with the other agency(ies).

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 47 of 88
0 If you desire, you may appcc:d any denials contained herein. Appeals should be directed in writing to the Co~Director, Office of Information and Privacy, U.S. DepJrtment of Justice, Flag Building, Suite 570, Vlashington, D.C. 20530-0001 \Vithin sixty days from receipt of this kttc1 The envelope and the letter should be clearly marked "Freedom of' lnfonnZltion Appeal" or "Infom1ation Appeal." Please cite the FOlP;\ number assigned to your request so that it nwy be easily identified.
D The enclosed material is from the main ill\TStigatiYc file(s) in which the subject of your request was the subject of the investigation. There are additional references to the subject(s) of your rt..·qucst in files rclnting to other individuaL, organizations, c\'cnts or ~lctivittcs. f'hesc adcl!tion~d mentions or references have not been reviewed to determine 1L in L1ct they <lrt: idcnufiabk with the subjcct(s) of your request. Our experience has shown th'-lt such references arc frequently similar to information contained in the processed main file(s). We will process these references if you now make a specific request for them. However, because of a significant increase in FOIPA requests and an expanC:ing backlog, \\'C have given priority to the processing
or main investigative riles and can only complete the processing of these additional refercncc:s
as time and resources pcnnit.
0 Sec additional information which follows.
Sincerely yours,
Chief Freedom of Information~
Privacy ;\cts Section ()!flee ur Public and Con~rt:SS!Ullal .'\fLurs
Enclosures (3 )

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 48 of 88

JrT

Transactional Records NSLs Since 10/2612001

NSL to Field Date

"'"'''"'' ,,,,,,:" r:mn~.!ll£1l \
:FE~; '''Uiili'll:!.! EX&EPJfr \N:l;r:E:;,y(;:\\H! :ln!ERWISi ? ,

)

Dervied ~ G-3 Dedas~ Xl
S~T

Page I of6

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 49 of 88

Project Number

NSL to Field Date

)

Dervie~: G-3 Decl£si~m: Xl
S~T

39

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 50 of 88

Project Number

NSL to Field Date

.,

~----

'o'

D Dee rvcio! ~.·~ .:-3
S~T

PageJo/6

Case 1:02-cv-02077-ESH Document 20-5 Filed 03/07/03 Page 51 of 88
NSL to Field Date
'o\

Derv~~-3
Decla~ XI
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Introduction

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

This discussion of the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq.,
("FISA", or "the statute") provides guidance for seeking authorization to conduct electronic surveillance or physical searches for foreign intelligence purposes. In response to the basic question, "What do I have to do to get a FISA?," first, step back and take a'look at the big picture. FISA was enacted to provide a statutory procedure for the government to obtain court orders authorizing the use of electronic surveillance in the United States for foreign intelligence purposes. Later, section 807 of the Intelligence Authorization Act for Fiscal Year 1995 (P .L. 103359) amended FISA to authorize the Court to issue warrants for physical searches for foreign intelligence purposes. Accordingly, FISA deals with electronic surveillance and physical searches of foreign powers and their agents. If your purpose is other than the acquisition of foreign intelligence information, as defined by the statute, you're probably in the wrong forum.
Without going into the historical background of FISA in detail, the impetus for its enactment
was largely concern for the privacy rights of U.S. persons, balanced against the government's need to obtain foreign intelligence information. As a result, the statute's treatment of "U.S. persons" and "non-U.S. persons" is different. For example, in considering this legislation, Congress stated that a U.S. person should be confident that his government cannot invade his privacy with the most intrusive techniques if he conducts himself lawfully and that, as a matter of public policy, no U.S. person should be targeted for electronic surveillance [or physical search] absent some showing that he at least "may" violate the Jaw. On the other hand, surveillance pursuant to FISA is not primarily for the purpose of gathering evidence of a crime, although evidence of a crime may well be acquired in surveilling persons who engage in the types of activities that define them as agents of foreign powers. As a result, FISA explicitly recognizes that evidence of a crime may be acquired in the course of surveillance or search conducted to protect the United States from the clandestine intelligence activities and international terrorist activities of foreign powers and their agents. Prosecution for a criminal offense is one way to combat such activities-- but only one way, and not alwaysthe best way. "Doubling" an agent or feeding him false or useless Information are other ways. Monitoring him to discover other agents and their tradecraft can be vitally useful. Prosecution, while disabling one known agent, may only mean that the foreign power replaces him with one whom it may take years to discover or who may never be discovered.

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

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

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

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"involve or may involve" indicates that the showing of [nexus to] criminality does not apply to FISA applications in the same way it does to ordinary criminal cases. As a result, there is no showing or finding that a crime has been or is being committed, as in the case of a search or seizure for law enforcement purposes. The activity identified by the government in the FISA context may not yet involve criminality, but if a reasonable person would believe that such activity is likely to lead to illegal activities, that would suffice. In addition, and with respect to the nexus to criminality required by the definitions of "agent of a foreign power," the government need not show probable cause as to each and every element of the crime involved or about to be irtvolved.
The determination as to probable cause to believe that a target is engaging in certain activities, or that an entity is directed and controlled by a foreign government, should take into account the same aspects of reliability of the government's information as in the ordinary criminal context, including the reliability of any informant, the circumstances of the informant's knowledge and the age of the information relied upon. On the other hand, not all of the same strictures with respect to these matters which have developed in the criminal context may be appropriate in the foreign intelligence context. That is, in the criminal context certain rules have developed or may develop for judging reliability of information. FISA does not require that these "rules" necessarily be applied to the probable cause determination. Rather, in judging the reliability of the information presented by the government, look to the totality of the information and consider its reliability on a case-by-case basis.
In Illinois v. Gat(ls, 462 U.S. 213 (1983), the Supreme Court overruled rigid application of
the two-pronged test for the reliability of an informant set forth in Spinelli v United States, 393 U.S.
410 (1969). Spinelli required both knowledge of the source of an informant's information as well as information as to the reliability of a source before his information could used to establish probable cause. Gates acknowledged that it was appropriate to consider such factors as instructive, but they should not be applied with mathematical precision. As a result, Gates stands for a "totality-of-the-circumstances" approach.
Also instructive is the case of Brinegar v. United States, 338 U.S. 160 (1949), which noted that probable cause is a factual and practical consideration of everyday life on which reasonable and prudent men act, not legal technicians. At the same time, probable cause is based on a presentation of reliable and corroborated facts, not mere suspicion.
Simply put, "probable cause" is reason to believe, based on available facts and circumstances, as well as the logical Inferences that can be drawn from them. It Is determined by
the totality of the facts and circumstances, as viewed from the perspective of a reasonable
person. Probable cause probability, not certainty, and, thus, Is significantly lower than the "proof beyond a reasonable doubt" necessary to support a criminal conviction. It is also lower than the "preponderance of the evidence" required in most civil cases.
NSLU recommends that a field agent seeking a FISA order focus on the object of the
belief required, i.e., the facts and circumstances demonstrating that the target of ~he
proposed search or surveillance is an agent of a foreign power and that the premises to be
surveilled (e.g., telephone) is used by that agent of a foreign power, rather than on the
quantum of the belief involved. If you can show that a target is engaged in certain activities, and that he is engaged In them for or on behalf of a foreign power, you have won
most of the battle.
No U.S. person may be considered an agent of a foreign power based solely on activities protected by the First Amendment to the Constitution. This provision is intended to reinforce the congressional intent that lawful political activities should never be the sole basis for a finding that a U.S. person is a foreign power or an agent thereof. For example, under the Supreme Court's

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decision in Brandenburg v. Oh1o, 395 U.S. 444 (1969), the advocacy of violence, falling short of inciting violence, is protected by the First Amendment. Thus, advocating the commission of terrorist acts would not, in and of itself, be sufficient to establish probable cause to believe that an individual or group may be preparing to commit such acts. However, one cannot cloak himself in First Amendment immunity where he is engaged in clandestine intelligence activities, terrorism or sabotage. ["The Constitution is not a suicide pact."]
... Probable Cause to Believe What?
To find probable cause to believe the subject of the surveillance is an "agent of a foreign power," as defined in subsection 101(b), the court must find that each and every element of that status exists. If a U.S. person is alleged to be acting on behalf of a foreign entity, the court must
first find probable cause to believe that that entity is a "foreign power," as defined in subsection
101 (a). There must also be probable cause to believe that the person is acting "for or on behalf or· that foreign power, as well as probable cause to believe that the efforts undertaken by the target on behalf of the foreign power constitute sabotage, international terrorism or clandestine intelligence activities. Similar findings are required for each element necessary to establish that a U.S. person is conspiring with or aiding and abetting someone engaged in sabotage, international terrorism or clandestine intelligence activities.
The Theory of the Case
The development of a "theory of the case" is a good start to the FISA process. That is, before asking FB\HQ for initiation of an application to the FISA Court, the field agent should review the facts of the case to determine which definition of "foreign power" and/or "agent of a foreign power" best matches the information obtained by the investigation to date. For example, if the subject is a U.S. person who is believed to be knowingly engaged in aiding and abetting an international terrorist, focus on facts that show his activities that aid the terrorist, as well as on facts that tend to demonstrate his knowledge that the person he is aiding is an international terrorist and that his activities aid that International terrorist. If the subject is a non-U.S. person who acts in.the U.S. as an employee of a foreign government, focus on presenting facts that demonstrate that status. In such a case, a recitation of intelligence activities is not as important as it would be in the case of a U.S. person, as to whom the FBI would have to show facts demonstrating knowing engagement in clandestine intelligence activities.
It is also helpful to articulate the specific foreign intelligence objectives of the proposed
surveillance or search. In an espionage case, e.g., your objective may be to determine whom an
intelligence officer has targeted for recruitment. Or you may need to know how a government employee is communicating with an intelligence officer who is his handler. Or you may need to
determine the identity of a foreign power a spy is working for, how he obtains access to classified
information, whether he is working alone or in concert with others and how he passes information to his handler. In an international terrorism case, your objectives may include identifying the members of the terrorist group or identifying their plans and intentions in order to prevent a terrorist attack.
§ 101(b) --Agent of a foreign power
Probably the single most important aspect of the request for a FISA application is showing that the subject to be surveilled or searched is an "agent of a foreign power." The definitions of "agent of a foreign power" differ for U.S. persons and certain non-resident aliens, including aliens present in the United States as tourists, visiting businessmen, exchange visitors, foreign seamen, diplomatic and consular personnel and illegal aliens, etc. The protections afforded such persons are not as great as those afforded U.S. persons. For example, in the case of non-resident aliens

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

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because the foreig1. ~ower for whom or on whose behalf he acts has demonstrated some pattern or practice of engaging in clandestine intelligence activities in the United States contrary to U.S. interests.
The phrase "acts for or on behalf of a foreign power" requires a nexus between the individual and the foreign power that suggests that he is likely to do the bidding of the foreign power. For example, visitors from totalitarian countries present in the United States under the auspices, sponsorship or direction of their government would satisfy this standard.
Once the requisite facts with regard to the foreign power are established, the key question is whether the circumstances of the person's presence in the U.S. indicate that he may engage in clandestine intelligence activities for that foreign power contrary to U.S. interests. The answer may vary according to what is known about the intelligence or terrorist operations of the particular foreign power. Among the factors that might be taken into account are whether the foreign visitor engages in activities with respect to which there is evidence that other visitors who engage in similar activities are officers, agents or acting on behalf of the intelligence service of that foreign power. If the FBI can show from experience that a particular foreign power uses a certain class of visitors to this country for carrying out secret intelligence assignments, this would indicate that other visitors in this class may also engage in clandestine intelligence activities.
"May engage in such activities" means that surveillance can be conducted to anticipate clandestine intelligence activities by such persons, rather than waiting until they have taken place. The additional standards for aiding and abetting, and conspiracy, require probable cause to believe that the foreign visitor is knowingly assisting persons who are already engaged In clandestine intelligence activities. The "knowing" requirements are the same as in the aiding or abetting and conspiracy standard for U.S. persons.
This provision does not treat nationals of certain countries differently from others solely on the basis of nationality, and it is not "profiling." Instead, surveillance of the nationals of certain countries depends on the activities of the governments of those countries and whether the individual is acting on behalf of the government.
·~ny Person" Agent of a Foreign Power
§ 101(b)(2)(A) --Clandestine Intelligence Gathering Activities Under this definition, an agent of a foreign power is "any person who is knowingly engaged in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal laws of the United States." The first aspect of this definition is that the subject is engaging in certain activities "knowingly." This does not mean that he must know that he may be violating a particular federal criminal statute, but that he knows that what he is doing is clandestine intelligence gathering activities and that he knows that he is doing it for or on behalf ofa foreign power. As state of mind is always difficult to show, knowledge is inferred from the circumstances. In showing that a person is knowingly engaged in clandestine intelligence gathering activities, focus on his activities. If, for example, a subject is transmitting classified defense secrets to the military attache of a foreign embassy, and he knows the information is classified and that his recipient is a military attache, this would be sufficient to show that he "knows" that he is acting for or on behalf of a foreign power. Similarly, if he has received training in the use of equipment for espionage, e.g., a microdot camera or disguised radio device, this would be sufficient to show that he "knows" what he is doing. One who is unwitting to what he is doing, or without knowledge that he is acting for or on behalf of a foreign power, is not an agent of a foreign power, but the

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

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

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"turned" or "doubled," i.e., after having started out as an agent: , a foreign power, he is persuaded to work for the United States. The standard is not met if the person is in fact working for the U.S. and not for the foreign power. There may be doubt, however, as to whether he is actually under U.S. control or that of a foreign power, making it unclear as to which side is deceiving which. The fact that a supposedly "doubled" agent carries out his assignments and instructions from the U.S. Government does not necessarily mean that he has stopped carrying out those of the foreign power. It is not necessary, therefore, that a surveillance, once authorized, be discontinued when the agent may have been "doubled." Rather, surveill-ance may continue until such time as the "doubled" agent is trusted enough to seek his consent to surveillance.
§ 101 (b)(2)(8) -- "Other Clandestine Intelligence Activities"
Subsection 101 (b)(2)(B) defines agent of a foreign power as a person who pursuant to the direction of an intelligence service or network of a foreign power knowingly engages in "other clandestine intelligence activities" for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States. ["Other" refers to other than clandestine intelligence gathering activities.]
The term refers to covert actions by intelligence services of foreign powers. Not only do foreign powers engage in spying in the United States to obtain information, they also engage in activities that are intended to harm U.S. security by affecting the course of government, the course of pubiic opinion or the activities of individuals. Such activities may include poiiticai action (recruiting, bribery or infiuencing public officials to act In favor of the foreign power), disguised propaganda (including the planting of false or misleading articles or stories) and harassment, intimidation or even assassination of individuals who oppose the foreign power. Such activity can undermine democratic institutions as well as directly threaten the peace and safety of U.S. citizens.
There may be a narrow line between clandestine intelligence activities and lawful activities undertaken by U.S. persons in the exercise of First Amendment rights. To avoid crossing that line, this definition requires that the person be shown to be acting "pursuant to the direction of an intelligence service or network of a foreign power." [No such showing is required for the other definitions of agent of a foreign power.] U.S. persons may well communicate with a foreign government to obtain information about that government's country or to discuss travel to that country, but such contacts are not necessarily "clandestine intelligence activities" and are not covered by this definition.
The activities engaged in must involve, or be about to involve, a violation of federal criminal law. This is higher than the "may" involve standard found in other definitions. In this area, where there is a narrow line between protected First Amendment activity and the activity giving rise to surveillance, it is important that the activity be such that it involves or is about to involve a violation of a federal criminal statute.
There are a number of crimes that rnight be involved in covert action, e.g., bribery of public
officials, campaign law violations, foreign agent registration requirements, denial of civil rights, et
cetera. It is important to note, however, that such a criminal violation does not necessarily establish that a person is engaged in "other clandestine intelligence activity." Americans, through ignorance or inadvertence, may well technically violate campaign law requirements or foreign agent registration requirements, but to satisfy the requirements of the definition, it is necessary to show, separately from the criminal violation, probable cause to believe that the person is knowingly engaged in any other clandestine intelligence activities for or on behalf of such foreign power, pursuant to the direction of an intelligence service or network of a foreign power.
§ 101(b}(2)(C) --Sabotage or Terrorism

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

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§101(b)(2)(D) --Entering the U.S. under a False or Fraudulent Identity This definition includes any person who knowingly enters the United States under a false or
fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power. The most obvious example would be the "illegal" who enters the United States under an assumed name and using a "legend" based on the vital statistics of a real person, usually dead. It would also include a person who enters the United States lawfully, then assumes a false identity, provided assuming such a false identity is done for or on behalf of a foreign power. §101(b)(2)(E) --Aiding, Abetting and Conspiracy
This· definition includes any person, including a U.S. person, who knowingly aids or abets any person in the conduct of activities described in the preceding subsections, or knowingly conspires with any person to engage in such activities. The knowledge requirement is applicable to both the status of the person being aided and the nature of the activity being promoted. This means the FBI must establish probable cause to believe that the subject knows both that the person with whom he is conspiring or whom he is aiding or abetting is engaged in the described activities as an agent of a foreign power and that his own conduct is assisting or furthering such activities. The Innocent dupe who unwittingly aids a foreign intelligence officer cannot be targeted under this provision.
In t11e case of a subject believed to be aiding or abetting persons engaged in international terrorism, the subject might be assisting a group engaged in both lawful political activity and unlawful terrorist acts. In such a case, it would be necessary to establish probable cause to believe that he was aware of the terrorist activities undertaken by the group and was knowingly furthering them, not merely that he was aware of and furthering the group's lawful activity. Verification Procedures

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

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

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

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or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (b) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (c) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power. These elements go to the classic counterintelligence and counterterrorism functions of the CIA and the FBI.
Under subsection 101 (e)(2), the definition of "foreign intelligence information" includes information with respect to a foreign power or foreign territory that relates to [or, if concerning a United States person, is necessary to] (a) the national defense or the security or (B) the conduct of the foreign affairs of the United States. These elements implicate the missions and functions of the Secretary of Defense and the Secretary of State.
Under the scheme set up by Executive Order 12333, the Assistant to the President for National Security Affairs (the "National Security Advisor") is the senior Executive Branch official in the Intelligence Community and has interests in all of these matters.
The requirement that the certifier deems the information sought to be "foreign intelligence information" is designed to ensure that a senior official with responsibilities in the area of national security reviews the determination made at lower levels of the Executive Branch that the information sought is foreign intelligence information. The intent of FISA is ensure that the certifier carefuiiy considers the substance of cases before him and does not simply sign off on boilerplate language. This prevents targeting a foreign power for electronic surveillance when the true purpose is to gather information about an individual for other than foreign intelligence purposes. It is also designed to make explicit that a significant purpose of such surveillance is to obtain "foreign Intelligence information" as defined, rather than some other type of information. The certifier similarly must explain in his affidavit why the information cannot be obtained through less intrusive techniques. This requirement is particularly important when U.S. persons are the targets of surveillance or search.
A Significant Purpose
The second element of the certification is that "a significant purpose" of the surveillance or search is to obtain foreign intelligence information. Since the objective in enacting the statute is to provide a statutory procedure for the government to obtain a judicial order for electronic surveillance or physical search for foreign intelligence purposes, the "purpose" aspect of the certification is extremely important. The majority of pre-FISA caselaw had recognized a "national security exception" to the warrant requirement of the Fourth Amendment. In determining whether the cases before them should be accorded that exception, the courts tended to focus on whether the collection of foreign intelligence information was the 'primary" purpose of the surveillance. In the case of Hqmphrev and Truong the trial judge concluded that the fruits of electronic surveillance and physical searches conducted without a warrant were admissible under the Fourth Amendment, provided those surveillances and searches had been conducted for a foreign intelligence purpose. The measure by which he determined purpose was direction and control of the surveillance, or investigation. So long as special agents of the FBI who normally investigated Intelligence activities were directing and controlling the investigation, he construed the information as having been obtained for a foreign intelligence purpose. Conversely, when DOJ prosecutors began to write prosecutive memoranda and to control the direction of the investigation, he concluded that the information had been obtained for the purpose of prosecution and, accordingly. was inadmissible since it had been obtained without a warrant.
When FISA was enacted, it required that "the purpose" of the surveillance be to obtain foreign intelligence information. Based on experience with pre-FISA caselaw, the government's practice before the Foreign Intelligence Surveillance Court has been to construe "the purpose" as "primary purpose" and to determine purpose by following a procedure similar to that adopted in
5!!

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Humphrey and Truong. A reading of the legislative history of FISA suggests that subsection 104(a)(7) was intended to replace the Humphrey-Truong test with the accountable official's certification that the purpose of the surveillance or search is to acquire foreign intelligence information, as defined. The USA PATRIOT Act amended FISA to require that obtaining foreign intelligence information be a "significant" purpose of the surveillance or search. While there is a dearth of legislative history of this amendment, it would appear that the Congress intended to rectify perceived lapses in the government's handling of certain counterintelligence investigations with regard to the determination of probable cause to believe that he was an agent of a foreign power and to steer the government-- as well as the Foreign Intelligence Surveillance Court-toward the statutory scheme of relying on the certification for determining purpose.
The information required by the FISC's Rule 11 is largely a recitalion of criminal justice pursuits and appears to follow the pre-enactment practice of determining purpose through an examination of direction and control of the investigation. The Court's position in this regard was reiterated in its opinions of April 22 and May 17, 2002, regarding the AG's March 6, 2002, memo on information sharing. The certification required by subsection 104(a)(7) is not so much an analysis of direction and control as an affirmation of the intelligence objectives of the surveillance or search. The point for field agents to understand is that In submitting a request for initiation of FISA surveillance or search, It is important to articulate the specific intelligence objectives of the requested FISA coverage. E.g., in an espionage case, those objectives might include identification of a subject's handler, or his tradecraft In servicing dead-drops or how he obtains access to classified information. In tile case of a terrorism subject, the objectives of the surveillance might be to learn the extent of the subject's relationship with an international terrorist group. To ensure that the Dir!'lctor has a proper basis for making this certification, NSLU recommends that any communication to HQ requesting application to the Court for authorization to use a FISA technique should both articulate the intelligence objectives to be achieved through the use of FISA techniques and, to satisfy requirements imposed by the Court, describe any criminal aspect of the investigation in sufficient detail to determine that intelligence officials and not law enforcement officials are directing and controlling the use of FISA techniques.
Not Reasonably Obtainable by Other Means
The third element of the certification is that the information sought cannot reasonably be obtained by normal investigative techniques. There is not much legislative guidance on this requirement, but, in general terms, it appears to is based on the general principle -- subsequently reiterated in Executive Order 12333 --that the Intelligence Community should respect individual privacy rights by conducting intelligence activities using the least intrusive techniques feasible. Thus, it would appear that, due to their Intrusiveness, Congress intended FISA techniques should be a last -- rather than first-- resort. In most instances, this requirement can be satisfied by the fact that only surveillance or search of the kind authorized pursuant to FISA can adequately obtain the Information sought. For example, if more visible or detectable means of surveillance were utilized, the subject would likely change his means of communication to something less susceptible of surveillance.
Category ofForeign Intelligence Information Sought
The fourth aspect of the certification is designation of the type of foreign intelligence information being sought according to the categories described in section 101 (e) of the statute, whether one of the kinds of counterintelligence information defined in subsection 101 (e)(1 ), or of positive intelligence as defined in subsection 101(e)(2).
Basis for Certification

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The final part of the certification is a statement of the basis for the certification as to the
third and fourth elements, i.e., that the information sought is the type of foreign intelligence
information designated, and that such information cannot reasonably be obtained by normal investigative techniques. Usually this is based on the results of the FBI's investigation to date. A presentation of facts relevant to this issue might follow a logical flow of relating the activities of the target that make him an "agent of a foreign power" as defined in subsection 101(b) to the appropriate definition of "foreign intelligence information" in subsection 101\e), coupled with a discussion of the technique that would be necessary to obtain that kind of intelligence information. This element of the certification is not required when the target of the electronic
surveillance is a foreign power as defined in subsection 801 (a)(1 ), (2) or (3), i.e., a foreign
government or component thereof; a faction of a foreign nation not substantially composed of United States persons; or an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.
Duration
The general rule is that the FISC may approve electronic surveillance for the period necessary to achieve its purpose, or for 90 days, whichever is less. There are certain exceptions. Electronic surveillance of a foreign power as defined in section 1Q1(a)(1), (2) or (3) may be authorized for up to one year. Electronic surveillance of a foreign agent as defined in section 101(b)(1 )(A) may be for the period specified in the application orfor 120 days, whichever is less. Upon renewal, surveillance of a 101 (b)( 1)(A) agent of a foreign power may be for a period not to exceed one year.
An order authorizing physical search may be approved for the period necessary to achieve its purpose, or for 90 days, whichever is less. As with electronic surveillance, there are exceptions. Physical search of a foreign power, as defined in 101(a)(1), (2) or (3), may be authorized for the period specified in the application or for one year, whichever is less, and physical search of a section 101 (b)(1 )(A) agent of a foreign power may be authorized for the period specified in the application or for 120 days, whichever is less. An extension may be granted·for a period not to exceed one year if the judge finds probable cause to believe that no property of any Individual United States person will be acquired during the period in which search is authorized,
It is important to ensure that surveillance or searches adhere to the timelines specified in the orders. For one thing, the length of time Involved in drafting a FISA application and preparing it for presentation to the Court requires that requests for renewal be forwarded in timely fashion. You cannot wait until two weeks before an order expires to submit a request for the next one. It Is also imperative that actual surveillance or search not occur beyond the period of authorization specified In the order. If surveillance should overrun the period of authorization, any unauthorized "take" must be sequestered and forwarded to the Office of Intelligence Policy and Review, via the substantive unit at FBIHQ, for submission to the Foreign Intelligence Surveillance Court. The overrun must also be reported by electronic communication to the Inspection Management Unit of the Inspection Division within 14 days of discovery of the error. [See section 2-56.E of the National Foreign Intelligence Program Manual.]
Miscellaneous Considerations
Getting an order from the Court is only the beginning of the successful administration of the authorities granted pursuant to FISA. Among the practical considerations that should attend implementation of a FISA order is ensuring that the "premises" being surveilled are those named in the order. For example, it is important to ensure that telephone coverage is on the right telephone line. Clues that something is amiss might include the fact that intercepted

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

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

In addition to this statutory protection from civil liability, if a service provider were to be sued

for assisting the FBI in conducting electronic surveillance or physical search pursuant to FISA, the

Bureau would seek the Attorney General's assertion of the State Secrets Privilege [United States

v. Reynolds, 345 U.S. 1 (1953)] to prevent the disclosure of classified information that would be

required to sustain such a cause of action. If a field office is contacted. by a s(lrvice provider

about such. a situation, NSLU should be notified immediately.

·

Coming Attractions ...

Th" gathering of information, including information as to the capabilities, intentions and
activities of foreign powers andtheir agents, would be meaningless without successful exploitationof that information to protect the United states from, h?stile attack ~nd otherf!rave
acts, acts of terrorism, sabotage and Clandestine intelligence activities:. Bearing inmind (hat the
recurring theme in various provisions of FISA is tha balancing.of/ndividual rights to privacy against the need of the governm"nt's need to acquire and produce foreign intelligence information, FISA creates a heavy burden with regard to mana!}ingtne acqqisition, retention and
dissf:in1in8tion of U.S. person 1nform8tion. in suin, tHi$ is the PrbCe'ij_S pf "iriinfiTiiZf.ition-." As most
minimization procedures are classified, minimization is not addressed here in detail. In addition,
the procedures for "information sharing" promulgated by the Attorney General on March 6 and
modified somewhat by .the F/SA Court are stillsu!Jjecttojudicial review, Accordingly, procedures
for the sharing of information will be the subject of a separate communication.

Top of Page

ft I Last Updated: j

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OGC INTI\ANE T
J NSLU HOME J BRANCHES I UNITS\ OGC HOME\ SEARCH\ FEEDBACK\
"What do I have to do to get a FISA?" Introduction
This discussion of the Foreign Intelligence Surveillance Act, 50 U.S.<;_§§__1_!l91 et seq., ("F\S.'\", or "the statute") provides guidance for seeking authorization to conduct electronic surveillance or physical searches for foreign intelligence purposes. In response to the basic question, "What do I have to do to get a FISA?," first, step back and take a look at the big picture. FISA was enacted to provide a statutory procedure for the government to obtain court orders authorizing the use of electronic surveillance in the United States for foreign intelligence purposes. Later, section 807 of the Intelligence Authorization Act for Fiscal Year 1995 (P.L. 103 -359) amended F\SA to authorize the Court to issue warrants for physical searches for foreign intelligence purposes. Accordingly, FISA deals with eiectronic surveiiiance and physicai searches of foreign powers and their agents. If your purpose is other than the acquisition of foreign intelligence information, as defined by the statute, you're probably in the wrong forum.
Without going into the historical background of F\SA in detail, the impetus for its enactment was largely concern for the privacy rights of U.S. persons, balanced against the government's need to obtain foreign intelligence information . As a result, the statute's treatment of "U.S. persons" and "non -U.S. persons" is different. For example, in considering this legislation, Congress stated that a U.S. person should be confident that his government cannot invade his privacy with the most intrusive techniques if he conducts himself lawfully and that, as a matter of public policy, no U.S. person should be targeted for electronic surveillance (or physical search] absent some showing that he at least "may" violate the law. On the other hand, surveillance pursuant to FISA is not primarily for the purpose of gathering evidence of a crime, although evidence of a crime may well be acquired in surveilling persons who engage in the types of activities that define them as agents of foreign powers. As a result, F\SA explicitly recognizes that evidence of a crime may be acquired in the course of surveillance or search conducted to protect the United States from the clandestine intelligence activities and international terrorist activities of foreign powers and their agents. Prosecution for a criminal offense is one way to combat such activities-- but only one way, and not always the best way. "Doubling" an agent or feeding him false or useless information are other ways. Monitoring him to discover other agents and their tradecraft can be vitally useful. Prosecution, while disabling one known agent, may only mean that the foreign power replaces him with one whom it may take years to discover or who may never be discovered.
With regard to non-U.S. persons who act in the United States in their official capacities, or who are members of International terrorist groups, however, no nexus to criminality is required, and they are defined as agents of foreign powers solely on the basis of their status. In addition, the retention and dissemination of information concerning non-U.S. persons is signficantly less regulated that that of U.S. person information. The FISA Court
FISA authorizes the government to apply to a special "Foreign Intelligence Surveillance Court" ("FISC" or "FISA court") for an order approving the use of electronic surveillance or physical search to acquire foreign intelligence information. Pursuant to an October, 2001, amendment by the USA PATRIOT Act, the FISA Court 1s composed of eleven judges designated by the Chief Justice of the United States. Historically, the judges were chosen from different circuits, but the amendment increasing the number of judges from seven to eleven also specified that they come from seven of the judicial circuits and that no fewer than three shall reside within 20 miles of the District of Columbia.
Approval of a FISA application requires a finding by the court that there is probable cause to believe that the
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target of the proposed surveillance is a "foreign power" or " 'ent of a foreign power," and that the facilities or places at which the surveillance is directed are used or are au-ut to be-used by TfiaHoreign power or agent of a foreign power. In addition to determining whether there is probable cause to support the application, the Court is also required to find that procedures proposed in the application to regulate the acquisition, retention and dissemination of information concerning U.S. persons meet the definition of "minimization procedures" in section
is 101 (h) of the statute. Because the showing that the target of the proposed surveTifarice or search a "foreign
power" or an "agent of a foreign power," the definitions of these terms are particularly important. Other terms are also important, including "international terrorism," "foreign intelligence information," "electronic surveillance,"
infra. "physical search" and "United States person," all o"f which are defined in section i Q1-or 301 of the statute and will
be discussed in detail,

Subsection 105(a) of FISA specifies the findings the court must make before he grants an order approving the use of electronic surveillance for foreign intelligence purposes. While the issuance of an order is mandatory if the court finds that all of the requirements of this section are met, the judge has the discretionary power to modify the order sought, such as with regard to the period of authorization or the minimization procedures to be followed. In practice, the FISA Court has found general supervisory powers in this language, and its power to modify minimization procedures has been used as power to influence or control other aspects of investigations. This is essentially what the Court did in its April 22 and May 17 orders in construing discussions between intelligence officials and law enforcement officials about investigative strategies and tactics as "minimization procedures" that required OIPR attendance to ensure that such discussions did not result in and in requiring OIPR be invited to attend.

Probable Cause ...

In general terms, FISA deals with "foreign powers" and "agents of foreign powers," and the fundamental requirement for the Court's granting a FISA application is probable cause to believe that the proposed subject of surveiliance or search is a foreign power or an agent thereof. "Foreign power" includes a foreign government; a faction of a foreign government; a group engaged in international terrorism; a foreign-based political organization, or an entity directed and controlled by a foreign government or governments. An "agent of a foreign power" includes non-resident aliens who act in the United States as officers, members or employees of foreign powers, or who act on behalf of foreign powers that engage in clandestine intelligence activities in the United States contrary to the interests of this country. U.S. persons meet the "agent of a foreign power" criteria if they engage in certain activities for or on behalf of a foreign power which involve, or may involve, certain criminal acts.
Subsection 105(a)(3) provides that in order to issue an order for electronic surveillance, the Court rnust find that on the basis of the facts submitted by the applicant there is "probable cause" to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power and that each of the facilities or places at which the elec::tronic surveillance Is direc::ted is being used, or is about to be used, by a foreign power or an agent of a foreign power. Subsection 304(a)(3) provides for similar findings with regard to physical search. As to both electronic surveillance and physical searches, no United States person may be considered a foreign power or an agent of a foreign power solely on the basis of activities protected by the First Amendment to the Constitution.
Probable cause in the FISA context is similar to, but not the same as, probable cause in criminal cases. Where a U.S. person is believed to be an agent of a foreign power, there must be probable cause to believe that he is engaged in certain activities, for or on behalf of a foreign power, which activities involve or may involve a violation of U.S. criminal law. The phrase "involve or may involve" indicates that the showing of [nexus to] criminality does not apply to FISA applications in the same way it does to ordinary criminal cases. As a result, there is no showing or finding that a crime has been or is being committed, as in the case of a search or seizure for law enforcement purposes. The activity identified by the government in the FISA context may not yet involve criminality, but if a reasonable person would believe that such activity is likely to lead to illegal activities, tha\, would suffice. In addition, and with respect to the nexus to criminality required by the definitions of "agent of a foreign power," the government need not show probable cause as to each and every element of the crime involved or about to be involved.

The determination as to probable cause to believe that a target is engaging in certain activities, or that an entity is directed and controlled by a foreign government, should take into account the same aspects of reliability of the government's information as in the ordinary criminal context, including the reliability of any informant, the circumstances of the informant's knowledge and the age of the information relied upon. On the other hand, not all of the same strictures with respect to these matters which have developed in the criminal context may be

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appropriate in the foreign intelligence context. That is, in the criminal coptoxt certain rules have developed or may
develop for judging reliability of information. FISA does not require that tt,c •les" necessarily be applied to the
probable cause determination. Rather, in judging the reliability of the inform&..Jn presented by the government, look to the totality of the information and consider its reliability on a case -by-case basis.
In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court overruled rigid application of the two -pronged
test for the reliability of an informant set forth in Spinelli v United States, 393 U.S. 410 (1969). Spinelli required
both knowledge of the source of an informant's information as well as information as to the reliability of a source before his information could used to establish probable cause. Gates acknowledged that it was appropriate to consider such factors as instructive, but they should not be applied with mathematical precision. As a result, Gates stands for a "totality-of-the-circumstances" approach.
Also instructive is the case of Brinegar v. United States, 338 U.S. 160 (1949), which noted that probable
cause is a factual and practical consideration of everyday life on which reasonable and prudent men act, not legal technicians. At the same time, probable cause is based on a presentation of reliable and corroborated facts, not mere suspicion.
Simply put, "probable cause" is reason to believe, based on available facts and circumstances, as well as the logical inferences that can be drawn from them. It is determined by the totality of the facts and circumstances, as viewed from the perspective of a reasonable person. Probable cause probability, not certainty, and, thus, is significantly lower than the "proof beyond a reasonable doubt" necessary to support a criminal conviction. It is also lower than the "preponderance of the evidence" required in most civil cases.

No U.S. person may be considered an agent of a foreign power based solely on activities protected by the First Amendment to the Constitution. This provision is intended to reinforce the congressional intent that lawful political activities should never be the sole basis for a finding that a U.S. person is a foreign power or an agent
thereof. For example, under the Supreme Court's decision in Brandenburg v. Ohio, 395 U.S. 444 (1969), the
advocacy of violence, falling short of inciting violence, is protected by the First Amendment. Thus, advocating the commission of terrorist acts would not, in and of itself, be sufficient to establish probable cause to believe that an individual or group may be preparing to commit such acts. However, one cannot cloak himself in First Amendment immunity where he is engaged in clandestine Intelligence activities, terrorism or sabotage. ["The Constitution is not a suicide pact.'1
... Probable Cause to Believe What?
To find probable cause to believe the subject of the surveillance is an "agent of a foreign power," as defined in subsection 101 (b), the court must find that each and every element of that status exists. If a U.S. person is alleged to be acting on behalf of a foreign entity, the court must first find probable cause to believe that that entity is a "foreign power," as defined in subsection 101 (a). There must also be probable cause to believe that the person is acting "for or on behalf of' that foreign power, as well as probable cause to believe that the efforts undertaken by the target on behalf of the foreign power constitute sabotage. international terrorism or clandestine intelligence activities. Similar findings are required for each element necessary to establish that a U.S. person is conspiring with or aiding and abetting someone engaged in sabotage, international terrorism or clandestine intelligence activities.
The Theory of the Case
The development of a "theory of the case" is a good start to the FISA process. That is, before asking FBIHQ for initiation of an application to the FISA Court, the field agent should review the facts of the case to determine which definition of "foreign power'' and/or "agent of a foreign power'' best matches the information obtained by the investigation to date. For example, if the subject is a U.S. person who is believed to be knowingly

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the United States, or when such person knowingly aids or abets any person in the , activities or knowingly conspires with any person to engaged in such activities.

!Ct of such

This definition does not require a showing that the foreign visitor is in fact engaged in clandestine

intelligence activities. As a practical matter, if a foreign visitor who does not have a track record of activities in the

United States is present in the U.S. for only a limited period of time, and the FBI is limited to the use of less

intrusive techniques, the FBI is not likely to be able to show that he is actually engaged in intelligence or terrorist

activities. He can be characterized as an agent of a foreign power, however, if it can be shown that the foreign

power on whose behalf he acts systematically engages in clandestine intelligence tor terrorist] activities that

threaten the security of the United States. It is a demonstration based on probability; i.e., it is not a showing that

the individual foreign circumstances of his

visitor is himself currently engaged in presence in the U.S. indicate he may

clandestine intelligence activities, engage in such activities because

but the

that the foreign

power

for

whom or on whose behalf he acts has demonstrated some pattern or practice of engaging in clandestine

intelligence activities in the United States contrary to U.S. interests.

The phrase "acts for or on behalf of a foreign power" requires a nexus between the individual and the

foreign power that suggests that he is likely to do totalitarian countries present in the United States

the bidding of the foreign power. under the auspices, sponsorship

For example, or direction of

visitors from their government

would satisfy this standard.

Once the requisite facts with regard to the foreign power are established, the key question is whether the circumstances of the person's presence in the U.S. indicate that he may engage in clandestine intelligence

activities for that foreign power contrary the intelligence or terrorist operations of

to U.S. interests. The answer may vary according to the particular foreign power. Among the factors that

what might

is known be taken

about into

account are visitors who

whether engage

the foreign visitor in similar activities

engages in activities with respect to which are officers, agents or acting on behalf of

there is evidence that other the intelligence service of that

foreign power. to this country

If the FBI can show from experience that a particular foreign power uses a certain class of for carrying out secret intelligence assignments, this would indicate that other visitors in this

visitors class

may also engage in clandestine intelligence activities.

"May engage in such activities" means that surveillance can be conducted to anticipate clandestine

intelligence activities by such persons, rather than waiting until they have taken place. The additional standards

for aiding and abetting, and conspiracy, require probable cause to believe that the foreign visitor is knowingly assisting persons who are already engaged in clandestine intelligence activities. The "knowing" requirements

are

the same as in the aiding or abetting and conspiracy standard for U.S. persons.

This provision does not treat nationals of certain countries differently from others solely on the basis of nationality, and it is not "profiling." Instead, surveillance of the nationals of certain countries depends on the activities of the governments of those countries and whether the individual is acting on behalf of the government.

''Any Person" Agent of a Foreign Power

§ 101(b)(2)(A) --Clandestine Intelligence Gathering Activities

Under this definition, an agent of a foreign power is "any person who is knowingly engaged in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal laws of the United States."

The first aspect of this definition is that the subject is engaging in certain activities "knowingly." This does

not mean that he must know that he may be violating a particular federal criminal statute, but that he knows that

what he is doing is clandestine intelligence gathering activities and that he knows that he is doing it for or on

behalf of a foreign power. As state of mind is always difficult to show, knowledge is inferred from the

circumstances. In showing that a person is knowingly engaged in clandestine intelligence focus on his activities. If, for example, a subject is transmitting classified defense secrets

gathering activities, to the military attache

of

a foreign would be

embassy, and he knows the information is classified and sufficient to show that he "knows" that he is acting for or

that his recipient is a on behalf of a foreign

military power.

attache, this Similarly, if he

has received training in the use of equipment for espionage, e.g., a microdot camera or disguised radio device,

this would be sufficient to show that he "knows" what he is doing. One who is unwitting to what he is doing, or

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engaged in aiding and abetting an international terrorist, focus on facts that show his activities that aid ''·

terrorist, as well as on facts that tend to demonstrate his knowledge that the person he is aiding is an inlet, ,ational

terrorist and that his activities aid that international terrorist If the subject is a non -U.S. person who acts in the

U.S. as case, a

an employee of a foreign government, focus on presenting facts that recitation of intelligence activities is not as important as it would be in

demonstrate that status. In such the case of a U.S. person, as to

a

whom the FBI would have to show facts demonstrating knowing engagement in clandestine intelligence activities.

It is also helpful to articulate the specific foreign intelligence objectives of the proposedsurveillance or search. In an espionage case, e.g., your objective may be to determine whom an iAte\ligence officer has targeted for recruitment. Or you may need to know how a government employee Is communicating with an intelligence officer who is his handler. Or you may need to determine the identity of a foreign power a spy is wo(king for, how he obtains access to classified information, whether he is workingalone or in concert. with other~and how he mpaesmsebserisnfoofrmthaetitoenrrtoorihsitsghroaunpdloerr.idIennatinfyiinngterthneatiriopnlaalntserarnodrisinmtecnatisoen,syionuorrodbejretcotivpersevmenatyaintcelrurdoerisidt eantttaifcykin. g the

§ 101(b)- Agent of a foreign power

to

be

Probably surveilled

the single most important aspect 9f the request for a FISA application is showing that the subject or searched is an "agent of a foreign power." The definitions of "agent of a foreign power" differ

for U.S. persons and certain non-resident aliens, including aliens presenUn the United States as tourists, visiting

businessmen, exchange visitors, foreign seamen, diplomatic and consular personnel and illegal aliens, etc. The

protections afforded such persons are not as gr<~at as those afforded U.S. persons. non-resident a! fens who are agents of foreign powers by virtue of thefr employrrient

For example, in the case in the-U.S. by a foreign

of

government, there need be no nexus to criminality, and the certification that accompanies the application is not

subject to judicial review. In addition, there is no requirement to minimize the acquisition, retention and

dissemination of information with respect to non-U.S. persons.

§ 101(b)(1) --Non-U.S. Persons Who Are Agents of a Foreign Power by Virtue of Status

Subsection 101 (b)(1 )(A) includes in its definition of "agent of a foreign power" non -U.S. persons who act in the Untted States as officers, employees or members of a foreign power. The most obvious ex_amples are

diplomats and consular officials. Their very presence is attributable.ta their status as empl9yees ()ftheir

governments, points out that

and their raison d'etre is to act for C()ngress cans.iders non-resident

or on behalf their ~:~liens who act .in

governments. The.legiglative hisWry of FISA
the United States gS ()f:f\f~rs• ~ll'ltlfoY.eesor

members of a foreign power as likely sources of foreign hitellfgence or caunterinfelligence·lnformafton:. Tfils

definition does not include persons who serve as officers or employees or are members of a foreign power in their

home country, but who do nat act in that capacity in the United States.

"Employee" is meant visitors such as professors,

to describe a normal lecturers, exchange

employee-employer students, performers

relationship. or athletes,

It does not el1co1Tlpass foreign even if in such capacity they are

receiving remuneration or expenses from their home government.

The term "member'' rnea.ns an active, knowingmember of a group or orllanizationthat is a foreign does not inc)ude mere syrnpathizers, fellow-travelers or persons who have me(ely attended meetings Df or organization. On the other hand, if a person has received terrorist training from a group engaged in

power. It the group

international terrorism or training _in intelligence tradecraft from a foreign organization, this would be substantial

evidence that he was a "member" of such an entity.

Unlike foreign 9fficials, membef6_,of international terrorist woups do not carry membership cards as evidence of their status. They do.not have visas or credentials identifying them as "members". of an IT group or organization. As a result, their status as members of a group or organization engaged in international terrorism is inferred from their activities.

The second non-U.S. person definition is the sa-called "visitor rule." It includes a nan-U.S. person who-acts for or an behalf of a foreign power which engages in clandestine intelligence activities in the United Slates contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in

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without knowledge that he is acting for or on behalf of a foreign power, is not an agent of a foreign power, but the government is not required to prove ignorance if a person engaging in such activities would reasonably have known that he was acting for or on behalf of a foreign power.
Next, the person must be "engaged" in the proscribed activities. Unlike the standard for foreign visitors. the fact that he "may engage" in such activities some time in the future is not sufficient. For example, if information shows that a person has recently engaged in such activities, this would normally suffice to show probable cause that he is "engaged." On the other hand, information that a person engaged in the prohibited activities in the past might well, depending on the circumstances, be sufficient to show probable cause to believe that he is still engaged in such activities. For example, information that a U.S. person was for years a spy for a foreign power hostile to the United States, but who had dropped out of sight for a few years, would probably be sufficient to show "probable cause" that he was, having now reappeared, continuing to engage in the clandestine intelligence activities.
Perhaps the most important element of this definition is "clandestine intelligence gathering activities." Most clandestine intelligence gathering activities will constitute a violation of the various federal criminal laws aimed at
espionage either directly or by failure to register (see, e.g., 18 U.S.C. §§ 792-799, 951; 42 U.S.C. §§ 2272-2278b; and 50 U.S.C. § 855). The term "clandestine intelligence gathering activities" is intended to mean "espionage" in
common parlance; it is not a legal term of art denoting a particular offense. The term also includes activities that are directly supportive of espionage, such as maintaining a "safehouse," servicing "letter drops," running an "accommodation address," laundering funds, recruiting new agents, infiltrating or exfiltrating agents under cover, creating false documents for an agent's "cove~· or utilizing a radio to receive or transmit instructions or information by "burst transmission." The term "clandestine intelligence gathering activities" is intended to mean activities in which no reasonable person would engage without knowing that society would not condone it.
As the words indicate, the activities must be "clandestine," i.e., the subject must have made some efforts to
conceal his activities. This does not necessarily mean that the information gathered by the agent must itself be secret or nonpublic, although this is usually the case. It is possible that a person might be asked to obtain information that is publicly available, but which a foreign power would not want known it was seeking. If he used false identification or ruse to obtain the information and then delivered the information by means of a microdot hidden in a magazine left at a "dead drop," both the means by which he gathered the information and the means by which he transmitted it would be "clandestine," even though the information itself might not be secret. The FBI may surveil such a person, even if the information he is collecting is not classified, because his activities identify him as an agent of a foreign power. By monitoring his contacts, their equipment and modus operandi, the FBI can learn valuable information concerning the tactics, capabilities and personnel of the foreign intelligence service.
"Clandestine intelligence gathering activities" are intended to be conduct of a nature associated with spies and espionage in its generic sense, but the term is supposed to be flexible wtth respect to what is being gathered because intelligence priorities and requirements differ between nations and over time. Obviously, gathering classified defense information, information about intelligence sources and methods and classified foreign relations information qualifies as "clandestine intelligence gathering activities" if it is done in a clandestine manner. Foreign powers also target American technology and trade secrets, economic developments, political information and even personal information for purposes of blackmail or other coercion, so that attempts to collect such information may also be "clandestine intelligence gathering activities."
It is possible, although unlikely, that some people might come close to using espionage techniques for otherwise law1ul purposes. Thus, the definition requires that the person be engaged in clandestine intelligence gathering activities "for or on behalf of a foreign power." The fact that a person gathers information and transmits it to a foreign power does not, by itself, satisfy the requirements of this definition, as people may legitimately gather information for foreign powers. Registered lobbyists, e.g., often do, but their activity, if legitimate, does not utilize the tradecraft of espionage or clandestine methods, to do so. This means that the FBI must show probable cause to believe that the person is not only engaged in clandestine intelligence gathering activities, but that he is doing so for or on behalf of a foreign power. Thus, showing that a person is stealing defense secrets and using a "dead drop" to pass them on is not enough; it must be shown that he is doing so for a foreign power.
The FBI must show that there is probable cause to believe that a subject is engaged in activity that at least "may" violate a federal criminal statute. As noted above, it is expected that most persons under this definition would be likely to violate laws directed against espionage. There are other laws, however, that might be violated,

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such as interstate transportation of stolen property or the Export Administration Act. The crime involved might be one of several violations depending, for example, upon the nature of the information being gathered.

The words "may involve" are intended to encompass clandestine intelligence gathering activities that may, as an integral part of such activities, involve a violation of federal law. They cover the situation in which the FBI cannot establish probable cause to believe that a foreign agent's activities involve a specific criminal act, but where there are specific and articulable facts to indicate that a crime may be involved. The circumstances might be such as to indicate that the activity may involve a crime. The term "may involve" requires only limited information regarding the crime involved, such that electronic surveillance may be permissible at some point prior to the time a crime, e.g., the passage of classified documents, actually occurs. There need not be a current or imminent violation of law if there is probable cause to believe that criminal acts may be committed.

In applying this standard, the FISA Court takes all the known relevant circumstances into account, e.g., who the subject is, where he Is employed, whether he has access to classified or other sensitive information, the nature of clandestine meetings or other clandestine activity, the method of transmission and whether there are innocent explanations for the behavior. The circumstances must not merely be suspicious, but must be of such a nature to lead a reasonable man to conclude that the activity may involve a federal criminal violation.

Again, a nexus to a foreign power is absolutely necessary. Surveillance would not be authorized against a
reporter merely because he gathers information for publication in a newspaper, even if the information were classified. Nor would it be authorized against a government employee who reveals secrets to a reporter or in a book for the purpose of informing the public. This definition would not authorize surveillance of ethnic Americans who lawfully gather political information and perhaps even lawfully share it with the foreign government of their national origin. Nor vvould it apply to lavvful activities to lobby, influence or inform members of Congress or the Administration to take certain positions with respect to foreign or domestic concerns. Nor would it apply to lawful gathering of information prepatory to such lawful activities. It is the combination of (1) obtaining in clandestine fashion (2) information that is necessary to the defense or security of the United States (3) for or on behalf of a foreign power that makes FISA surveillance

In the case of an organization whose leaders are engaged in clandestine intelligence gathering activities, such activity cannot necessarily be attributed to every member of the group. There must be probable cause to believe that a particular rnernber is himself engaged in such activity before electronic surveillance targeted against him may be authorized.

Because the standard under this definition requires that a person knowingly engage in activities for or on behalf of a foreign power, problems can arise in a situation in which a person is "turned" or "doubled," i.e., after having started out as an agent for a foreign power, he is persuaded to work for the United States. The standard is not met if the person is in fact working for the U.S. and not for the foreign power. There may be doubt, however, as to whether he is actually under U.S. control or that of a foreign power, making it unclear as to which side is deceiving which. The fact that a supposedly "doubled" agent carries out his assignments and instructions from the U.S. Government does not necessarily mean that he has stopped carrying out those of the foreign power. It 1s not necessary, therefore, that a surveillance, once authorized, be discontinued when the agent may have been "doubled." Rather, surveillance may continue until such time as the "doubled" agent is trusted enough to seek his consent to surveillance.

§ 101(b)(2)(8) -- "Other Clandestine Intelligence Activities"

Subsection 101(b)(2)(8) defines agent of a foreign power as a person who pursuant to the direction of an intelligence service or network of a foreign power knowingly engages in "other clandestine intelligence activities" for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States. ["Other'' refers to other than clandestine intelligence gathering activities.]

The term refers to covert actions by intelligence services of foreign powers. Not only do foreign powers engage in spying in the United States to obtain infonmation, they also engage in activities that are intended to harm U.S. security by affecting the course of government, the course of public opinion or the activities of individuals. Such activities may include political action (recruiting, bribery or influencing public officials to act in favor of the foreign power), disguised propaganda (including the planting of false or misleading articles or stories) and harassment, intimidation or even assassination of individuals who oppose the foreign power. Such activity can undermine democratic institutions as well as directly threaten the peace and safety of U.S. citizens.
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There may be a narrow line between clandestine intelligence activities and lawful activities undertaken by U.S. persons in the exercise of First Amendment rights. To avoid crossing that line, this definition requires that the person be shown to be acting "pursuant to the direction of an intelligence service or network of a foreign power." [No such showing is required for the other definitions of agent of a foreign power.] U.S. persons may well communicate with a foreign government to obtain information about that government's country or to discuss travel to that country, but such contacts are not necessarily "clandestine intelligence activities" and are not covered by this definition.

The activities engaged in must involve, or be about to involve, a violation of federal criminal law. This is

higher than the "may" involve standard found in other definitions. In this area, where there is a narrow line

between protected First Amendment activity and the activity giving rise to surveillance, it is important that the

activity be such that it involves or is about to involve a violation of a federal criminal statute.

·

There are a number of crimes that might be involved in covert action, e.g., bribery of public officials, campaign law violations, foreign agent registration requirements, denial of civil rights. etcetera. It is important to note, however, that such a criminal violation does not necessarily establish that a person is engaged in "other clandestine intelligence activity." Americans, through ignorance or inadvertence, may well technically violate campaign law requirements or foreign agent registration requirements. but to satisfy the requirements of the definition, it is necessary to show, separately from the criminal violation, probable cause to believe that the person is knowingly engaged in any other clandestine intelligence activities for or on behalf of such foreign power,
pursuant to the direction of an intelligence service or network of a foreign power.

§ 101(b)(2)(G) --Sabotage or Terrorism

Subsection 101 (b )(2)(C) allows electronic surveillance or physical search of any person, including a U.S. person, who knowingly engages in sabotage or international terrorism, or activities in preparation therefor, for or on behalf of a foreign power. The terms "sabotage" and "international terrorism" are defined separately and require a showing of criminal activity. Mere sympathy for, identity of interest with or vocal support for the goals of a foreign group, even a foreign-based terrorist group, is not sufficient to justify surveillance under this subparagraph. The term "activities that are in preparation [for]" sabotage or international terrorism is intended to encompass activities supportive of acts of serious violence --for example, purchase or surreptitious importation into the United States of explosives, planning for assassinations or financing of or training for such activities. Other activities supportive of terrorist acts could likewise satisfy this standard. The circumstances must be such as would lead a reasonable person to conclude that the subject is knowingly engaged in activities that are in preparation for sabotage or terrorism.

The term "preparation" does not mean preparation for a specific terrorist act. Because the definition of "international terrorism" speaks of a range of acts. and "preparation" as used here takes its meaning from the context of the definition of "international terrorism," it could reasonably be interpreted to include. e.g.. providing the personnel, training, funding or other means for the commission of acts of terrorism, rather than participating in a particular bombing. This provision also permits electronic surveillance or physical search at a time before the danger sought to be prevented --whether a kidnaping, bombing or hijacking -- actually occurs.

The "preparation" standard allows surveillance where the government cannot establish that an individual has already knowingly engaged in an act of sabotage or terrorism, but there are sufficient specific and articulable facts to indicate that his activities are in preparation for such acts. The circumstances must be such as would lead a reasonable person to conclude that the subject is knowingly engaged in activities that are in preparation for sabotage or terrorism.

It should be noted that the "preparation" standard need apply only where there is insufficient information to show that the subject is, in fact, a terrorist. Where the FBI can show that the subject is a known international terrorist, such as the notorious "Carlos," or that he has been engaging in international terrorism for or on behalf of a group engaged in international terrorism, there is no need to show that he is in the act of preparing for further terrorist acts. In some cases, immediate arrest may not be possible, such as situations in which the subject may not have violated U.S. law. even though he may have murdered hundreds of persons abroad. In other cases it may be more fruitful to monitor the subject's activities in the United States to identify otherwise unknown terrorists located here, their international support structure and the locations of weapons or explosives. If a person who has engaged in international terrorism visits the U.S. or resides in the U.S., the FBI should be able to utilize electronic surveillance to monitor his activities, whether or not there is information showing that he is presently

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planning some particular violent act.

Finally, a subject targeted for surveillance under this definition must be shown to have a knowing

connection connection

with the foreign power for whom he is working. In most cases of international terrorism, this will be shown to exist with a group engaged in international terrorism. The case may arise in

which

a

U.S. person is acting for or on behalf of such a group that is substantially composed of U.S. persons. In such a

case, the Court must examine the circumstances carefully in order to determine whether the organization is "a

group engaged in international terrorism," as defined, and not a purely domestic group engaged in domestic

terrorism. [Domestic terrorism is handled under criminal law processes, e.g., Title Ill of the Omnibus Crime

Control and Safe Streets Act of 1968, Title 18, U.S. Code, chapter-119, and the AG Guidelines for General

Crimes.]

§101 (b)(2)(D) -Entering the U.S. under a False or Fraudulent Identity

This definition includes any person who knowingly enters the United States under a false or fraudulent

identity identity

for or for or

on on

behalf behalf

of of

a a

foreign foreign

power or, while in power. The most

the United States, knowingly assumes obvious example would be the "illegal"

a false or fraudulent who enters the

United States under an assumed name and using a "legend" based on the vital statistics of a real person, usually

dead. It would also include a person who enters the United States lawfully, then assumes a false identity,

provided assuming such a false identity is done for or on behalf of a foreign power.

§101(b)(2)(E} --Aiding, Abetting and Conspiracy

This definition includes any person, including a U.S. person, who knowingly aids or abets any person in lhe

conduct of activities described in the preceding subsections, or knowingly conspires with any person to engage in

such activities. The knowledge requirement is applicable to both the status of the person being aided and the

nature of the activity being promoted. This means the FBI must establish probable cause to believe that the

subject knows both that the person with whom he is conspiring or whom he is aiding or abetting Is engaged in the

described activities.

activities as an agent of The innocent dupe who

a foreign power unwittingly aids

and that a foreign

his own conduct is intelligence officer

assisting or furthering such cannot be targeted under this

provision.

In the case of a subject believed to be aiding or abetting persons engaged in international terrorism, the

subject might be assisting a group engaged in both lawful political activity and unlawful terrorist acts. In such a

case, it would be necessary to establish probable cause to believe that he was aware of the terrorist activities

undertaken by the group group's lawful activity.

and

was

knowingly

furthering

them,

not

merely

that

he

was

aware

of

and

furthering

the

Verification Procedures

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By order dated May 17. 2002, the FISA Court promulgated "Rule 1i, Criminal Investigations in FISA Cases":

All FISA applications shaU include informative descriptions of any ongoing criminal investigations of
FISA targets, as we!! as the substance of any consultations between the FBIand criminal
prosecutors at the Department of Justice or a United States Attorney's Office.

Rule 11 formalizes the requirement for descriptions of any ongoing criminal investigation, an issue that was

addressed in the "verification procedures" dated April 5, 2001. Then Rule 11 adds the requirement to describe

the substance of any consultations between the FBI and criminal prosecutors at DOJ or a United States

Attorney's Office. The scope and degree of such consultations have proliferated significantly since promulgation

of the AG's memo on information sharing on March 6, 2002, and access by prosecutor

and to case files on intelligence investigations has reached unprecedented proportions

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Certification

Subsection 104(a)(7) of FISA requires a certification by the Assistant to the President for National Security Affairs-- or other Executive Branch official designated by the President from among those officials employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate. The designated presidential advisor is the only one specifically provided for in the statute. By Executive Orders 12139 and 12949 the President has also designated the Director (and Deputy) of Central Intelligence, the Secretary (and Deputy) of Defense, the Secretary (and Deputy) of State and the Director of the FBI. Note that the Deputy Director of the FBI is conspicuously absent -- the Deputy Director is typically a career Special Agent rather than an official appointed by the President with the advice and consent of the Senate and therefore does not meet the statutory prerequisites.

Foreign Intelligence Information

The certification consists of five elements, the first of which is that the official making the certification deems the information sought to be foreign intelligence information. If you relate these officials and their functions to the definition of "foreign intelligence information" in section 101{e) of the statute, there is a certain attr<'!ction of logic in !heir selection. Under subsection 101(e)(1), "foreign intelligence information" means information that relates to [or, if concerning a United States person, is necessary to] the ability of the United States to protect against (a) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (b) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (c) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power. These elements-go to the classic counterintelligence and counterterrorism functions of the CIA and the FBI.

Under subsection 101 (e)(2}, the definition of "foreign intelligence information" includes information with respect to a·foreign power or foreign territory that relates to [or, if concerning a United States person, is necessary to] (a} lhe national defense or the security or (B) the conduct of the foreign affairs of the United States. These elements Implicate the missions and functions of the Secretary of Defense and the Secretary of State.

Under the scheme set up by Executive Order 12333, the Assistant to the President for National Security Affairs (the "National Security Advisor") is the senior Executive Branch official in the Intelligence Community and has interests in all of these matters.

The requirement that the certifier deems the information sought to be "foreign intelligence information" is
designed to ensure that a senior official with responsibilities in the area of national security reviews the determination made at lower levels of the Executive Branch that the information sought is foreign intelligence information. The intent of FISA is ensure that the certifier carefully considers the substance of cases before him and does not simply sign off on boilerplate language. This prevents targeting a foreign power for electronic surveillance when the true purpose is to gather information about an individual for other than foreign intelligence purposes. It is also designed to mal<e explicit that a significant purpose of such surveillance is to obtain "foreign intelligence information" as defined, rather than some other type of information. The certifier similarly must explain in his affidavit why the information cannot be obtained through less intrusive techniques. This requirement is particularly important when U.S. persons are the targets of surveillance or search.

A Significant Purpose

bb~5-bIiE. -j ~

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The second element of the certil.~••on is that "a significant purpose" of the surveillance or search is to obtain foreign intelligence information. Since the objective in enacting the statute is to provide a statutory procedure for the government to obtain a judicial order for electronic surveillance or physical search for foreign intelligence purposes, the "purpose" aspect of the certification is extremely important. The majority of pre -FISA caselaw had recognized a "national security exception" to the warrant requirement of the Fourth Amendment. In determining whether the cases before them should be accorded that exception, the courts tended to focus on whether the collection of foreign intelligence information was the "primary" purpose of the surveillance. In the case of Humphrey and Truong the trial judge concluded that the fruits of electronic surveillance and physical searches conducted without a warrant were admissible under the Fourth Amendment, provided those surveillances and searches had been conducted for a foreign intelligence purpose. The measure by which he determined purpose was direction and control of the surveillance, or investigation. So long as special agents of the FBI who normally investigated intelligence activities were directing and controlling the investigation, he construed the information as having been obtained for a foreign intelligence purpose. Conversely, when DOJ prosecutors began to write prosecutive memoranda and to control the direction of the investigation, he concluded that the information had been obtained for the purpose of prosecution and, accordingly, was inadmissible since it had been obtained without a warrant.
When FISA was enacted, it required that "the purpose" of the surveillance be to obtain foreign intelligence information. Based on experience with pre-FISA caselaw, the government's practice before the Foreign Intelligence Surveillance Court has been to construe "the purpose" as "primary purpose" and to determine purpose by following a procedure similar to that adopted in Humphrey and Truong. A reading of the legislative history of FISA suggests that subsection 104(a)(7) was intended to replace the Humphrey-Truong test with the accountable official's certification that the purpose of the surveillance or search is to acquire foreign intelligence information, as defined. The USA PATRIOT Act amended FISA to require that obtaining foreign intelligence information be a "significant" purpose of the surveillance or search. While there is a dearth of legislative history of this amendment, it would appear that the Congress intended to rectify perceived lapses in the government's handling of certain counterintelligence investigations with regard to the determination of probable cause to believe that he was an agent of a foreign power and to steer the government -- as well as the Foreign Intelligence Surveillance Court-- toward the statutory scheme of relying on the certification for determining purpose.
The information required by the FISC's Rule 11 is largely a recitation of criminal justice pursuits and appears to follow the pre-enactment practice of determining purpose through an examination of direction and control of the investigation. The Court's position in this regard was reiterated in its opinions of April 22 and May 17,2002, regarding the AG's March 6, 2002, memo on information sharing. The certification required by subsection 104(a)(7) is not so much an analysis of direction and control as an affirmation of the intelligence objectives of the surveillance or search. The point for field agents to understand is that In submitting a request for initiation of FISA surveillance or search, it is important to articulate the specific intelligence objectives of the requested FISA coverage. E.g., in an espionage case, those objectives might include identification of a subject's handler, or his tradecraft in servicing dead-drops or how he obtains access to classified information. In the case of a terrorism subject, the objectives of the surveillance might be to learn the extent of the subject's relationship with an International terrorist group. To ensure that the Director has a proper basis for making this certification, NSLU recommends that any communication to HQ requesting application to the Court for authorization to use a FISA technique should both articulate the intelligence objectives to be achieved through the use of FISA techniques and, to satisfy requirements imposed by the Court, describe any criminal aspect of the investigation in sufficient detail to determine that intelligence officials and not law enforcement officials are directing and controlling the use of FISA techniques.
Not Reasonably Obtainable by Other Means
The third element of the certification is that the information sought cannot reasonably be obtained by normal investigative techniques. There is not much legislative guidance on this requirement, but, in general terms, it appears to is based on the general principle-- subsequently reiterated in Executive Order 12333 --that the Intelligence Community should respect individual privacy rights by conducting intelligence activities using the least intrusive techniques feasible. Thus, it would appear that, due to their intrusiveness, Congress intended FISA techniques should be a last --rather than first-- resort. In most instances, this requirement can be satisfied by the fact that only surveillance or search of the kind authorized pursuant to FISA can adequately obtain the information sought. For example, if more visible or detectable means of surveillance were utilized. the subject would likely change his means of communication to something less susceptible of surveillance.

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Categmy of Foreign Intelligence Informatioll SC'".-.ht

The fourth aspect of the certification is designation of the type of foreign intelligence information being sought according to the categories described in section 101 (e) of the statute, whether one of the kinds of counterintelligence information defined in subsection 101 (e)(1 }, or of positive intelligence as defined in subsection 101 (e)(2).

Basis for Certification

The final part of the certification is a statement of the basis for the certification as to the third and fourth
elements, i.e., that the information sought is the type of foreign intelligence information designated, and that such
information cannot reasonably be obtained by normal investigative techniques. Usually this is based on the results of the FBI's investigation to date. A presentation of facts relevant to this Issue might follow a logical flow of relating the activities of the target that make him an "agent of a foreign power" as defined in subsection 101 (b) to the appropriate definition of "foreign intelligence information" in subsection 101(e), coupled with a discussion of the technique that would be necessary to obtain that kind of intelligence information. This element of the certification is not required when the target of the electronic surveillance is a foreign power as defined in
subsection B01 (a)(1 ), (2) or (3}, i.e., a foreign government or component thereof; a faction of a foreign nation not
substantially composed of United States persons; or an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.
Duration

The general rule is that the FISC may approve electronic surveillance for the period necessary to achieve its purpose, or for 90 days, whichever is less. There are certain exceptions. Electronic surveillance of a foreign power as defined in section 101 (a)(1 }, (2) or {3) may be authorized for up to one year. Electronic surveillance of a foreign agent as defined 1n section 101 (b)(1 )(A) may be for the period specified In the application or for 120 days, whichever is less. Upon renewaT,surveillance of a 101(b)(1 )(A) agent of a foreign power may be for a period not to exceed one year.

An order authorizing physical search may be approved for the period necessary to achieve its purpose, or for 90 days, whichever is less. As with electronic surveillance, there are exceptions. Physical search of a foreign power, as defined in 101 (a)(1 ), (2) or (3), may be authorized for the period specified in the application or for one year, whichever is less, and physical search of a section 101 (b}(1 }(A) agent of a foreign power may be authorized for the period specified in the application or for 120 days, whichever is less. An extension may be granted for a period not to exceed one year if the judge finds probable cause to believe that no property of any individual United States person will be acquired during the period in which search is authorized.

It is important to ensure that surveillance or searches adhere to the timelines specified in the orders. For

one thing, the length of time involved in drafting a FISA application and preparing it for presentation to the Court

requires that requests for renewal be forwarded in timely fashion. You cannot wait until two weeks before an

order expires to submit a request for the next one. It is also imperative that actual surveillance or search not

occur beyond the period of authorization specified in the order. If surveillance should overrun the period of

authorization, any unauthorized "take" must be sequestered and forwarded to the Office of Intelligence Policy and

Review, via the substantive unit at FBIHQ, for submission to the Foreign Intelligence Surveillance Court. The

overrun must also be reported by electronic communication to the Inspection Management Unit of the Inspection

Division within 14 days of discovery of the error. [See section 2-56.E of the National Foreign Intelligence Program

Manual.]

-

Miscellaneous Considerations

Getting an order from the Court is only the beginning of the successful administration of the authorities granted pursuant to FISA. Among the practical considerations that should attend implementation of a FISA order is ensuring that the "premises" being surveilled are those named in the order. For example, it is important to ensure that telephone coverage is on the right telephone line. Clues that something is amiss might include the fact that intercepted communications are in a language other than that expected. Or the information obtained might appear to be non-pertinent to the intelligence objectives of the surveillance.

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In cases of physical search, the Court typically requires a ,c "Y the federal officer executing the search.
The return is essentially a report to the Court of the circumstances u...Jer which the search was conducted and the information or tangible items seized. It is common for the Court to require a return within twenty-one (21) days of the execution of a search, but 21 days is not necessarily applicable to all cases, so it is important to note
the specific requirements of individual orders.

Another practical consideration is the provision of subsection 105(c)(2) that the Court may order a communications common carrier, landlord, custodian or other specified person to furnish the applicant [the FBI] with all information, facilities or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy. In addition, the Court may order such persons maintain any records concerning the surveillance or the aid furnished that such person wishes to retain under security procedures approved by the Attorney General and the Director of Central Intelligence. Subsection 304(c)(2) makes similar provision for physical searches.
A recurring problem is service of the order on service providers or other specified persons who lack security clearances or, in some cases, the wherewithal to store classified orders properly. When FISA was originally enacted, the overwhelming bulk of the surveillance was simple telephone wiretaps, and there were only a few large communications common carriers with which to deal. As a result, it was relatively easy to obtain clearances for a security office at a large carrier to obtain proper access to information and storage facilities. Since then, however, the large telephone companies have broken up into numerous "baby bells," leading to a proliferation of the workload Involved with background investigations and clearances. In addition, the advent of the Internet and the concomitant proliferation of Internet service providers have also added to investigative and security clearance workloads.
The security procedures approved by the Attorney General and the Director of Central Intelligence empower the SAC to authorize disclosure of a classified order on an emergency basis under circumstances in which such disclosure is necessary to execute the order. As a rule, the classified information contained in a secondary order is typically limited to identification of the target --which information is frequently communicated to the service provider anyway in preliminary discussion. As a result, showing a service provider the secondary order typically amounts to disclosure of something he already knows --the identity of the subject of surveillance. In a case in which an ongoing relationship is not likely and there is no need for the service provider to have longterm access to classified information, the SAC may authorize showing the secondary order to a service provider or other specified person on a one-time basis. It is recommended that the service provider be offered a "trust receipt" that relates back to the order by date and docket number and that the field office secure the secondary order. The service provider should be advised that the order will be made available should the need arise. If needed, a copy of the security procedures [which are classified] and a model trust receipt may be obtained from NSLU via Groupwise e-mail.
With regard to the trust receipt, the most common concern expressed by service providers is the fear of being sued for providing assistance to the FBI. Service providers may be advised of the following provision of subsection 105(i):
No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this Act for electronic surveillance or physical search.
In addition to this statutory protection from civil liability, if a service provider were to be sued for assisting the FBI in conducting electronic surveillance or physical search pursuant to FISA, the Bureau would seek the Attorney General's assertion of the State Secrets Privilege [United states v. Reynolds, 345 U.S. 1 (1953)] to
be prevent the disclosure of classified information that would required to sustain sud1 a cause of action. If a field
office is contacted by a service provider about such a situation, NSLU should be notified immediately.

Coming Attractions __ _

The gathering of information, including information as to the capabilities, intentions and activities of foreign powers and their agents, would be meaningless without successful exploitation of that information to protect the

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United States from hostile attack and other grave acts, acts of terrorism, sabotage .J clandest"lne intetngence activities. Bearing in mind that the recurring theme in various provisions of FISA is the balancing of individual rights to privacy against the need of the government's need to acquire and produce foreign intelligence information, FISA creates a heavy burden with regard to managing the acquisition, retention and dissemination of U.S. person information. In sum, this is the process of "minimization." As most minimization procedures are classified, minimization is not addressed here in detail. In addition, the procedures for "information sharing" promulgated by the Attorney General on March 6 and modified somewhat by the FISA Court are still subject to judicial review. Accordingly, procedures for the sharing of information will be the subject of a separate communication.
Top of Page
Last Updated: Thursday, September 12, 2002

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Case 1:02-cv-02077-ESH Document 20-6 Filed 03/07/03 Page 1 of 2
EXHIBIT III

Case 1:02-cv-02077-ESH Document 20-6 Filed 03/07/03 Page 2 of 2
STORED WIRE & ELECTRONIL )IVIMIJNICATIONS
QUICK REFERENCE GUIDE
(REFLECTrNG 2001 UPDATES FROM 1\L 107-56, USA PA'I'R!OT ACT)

exception applies

s::earch warrant

Subpoena;
2703(d) order; or search warrant

2702(a)(3)]

[§ 2703(c)(2)]

[§ 2703(c)(2)] [§ 27ll(2)]

OlhH lt'illlSill'lhmul und

I No, unless
§2702(c)
cxceprion applies

Yes

2703(d) order or search wa.mmt

2703(d) order or search warrant

Ul'fiiiiiii-IWIII'IfS-•.

[§ 2702(a)(3))

[§ 2702(a)(3)]

[§ 2703(c)(l)]

[§

'

JMril•n·d
l'UIIIIIIIIII jI'll ti1111~:{: uud l'Oilh·nt or · ulll\•1' ~lurt•d l'il~s

No, unkss § 2702(b) exception applie.._<;

Yes [§ 2702(a)(2) and

Subpoen.a with
notice; 2703(d)
order with notice; or search WarrDllt

Subpoena; ECPA doesn't
apply

[§ 2702(a)(2)]

§2711(2)]

[§ 2703(b)]

[§ 2711(2)]

\,lnnt rh·wd
tllllllllllllkulinns:):
(llll'l\'\'h'l>llil'
~tllfll):\' mun• tlmn 11!0 lhi~'S)

No, unless § 2702(b) exception applies
[§ 2702(a)(l)]

Yes

[§

)]

Subpoena with notice; 2703(d)
order with noricc;
or search warrant
[§ 2703(a,b)]

Subpoena wilh notice; 2703(d) order with notice; or search warrant

lllll'l'll'i\'Wd
t U t l l l l l l l l l k n t h ons:!'.
(In vl\'t'lrunh'
~lot·a~v ISit da~·s
llt..!~·s~l

No, unless § 2702(b) exception applies
[§ 2702(a)(l)]

Yes [§ 2702(a)(1))

Search warrant
• [§ 2703(a)]

Search warr!IJ1t [§ 270I 3(a)]

l

See HI U.S.C. § includesl among
includes, among session.

2oo7tthh0ee3rr(scr,e)r(ce2oc)rodfrsod,rsllooiscftasilneasssnoidofnliontnfiomgremdsiasattaniondncdecuocrvoaentirnoeerduc.t,iFoannodrretIecPloearpddhsdo.rneFessocraoIsmnsitmgenruneneditctacotointohnn.ees,cutstiheoerndsse,uctrhtiineognsethcetion

t Includes the content of voice communicatiort~.

* Ct)lll)lliPiC.OMr C.ariBinno'ox<c2:S0;IS2IlL)7I;ih1Iu<4cl-ll!ck0~~n·•6uFun;l\u'JtlkmJl'uipnxL'Sl'I(YwZtOsi~o~·)'n''.''i'I''l.i'lf~..(l\J\J'U:al~n;h\li:l'cnlg\.\tl'1o:\Sn'\I,1U'I,DC,·S.~C·hL(.k'.p1ni0:1r01i~11-\1\l\1·:WI,~I'I~lII'S''nil' Jll~lk~

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 1 of 70
EXHIBIT IV

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 2 of 70
Exemption (b)(1) Narratives

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 3 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Numbers: 1 and 2 Subject: FISA Date of Document: 2/4/2003 Total Number of Pages: 2 Total Number of Pages Containing National Security Information: 2 Description of Document: FISA Report
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions on page 1 and on page 2, (pages 1 and 2}. The information withheld is a listing of Court authorized FISAs active within a specific time frame. The list identifies the specific target of each FISA; the file number assigned to each Foreign Counterintelligence/International Terrorism (FCI/IT}investigation involving the FISA; the specific field office or office of origin where the investigation is ongoing; the authorization and expiration dates of each listed FISA; and the total number of FISAs. The FBI conducts FCI/IT investigations to determine whether a foreign intelligence officer or agent or international terrorist group is seeking to infiltrate an organization in order to influence or control it. In addition, FCI/IT investigations
-1-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 4 of 70
are conducted to determine whether an organization or group substantially composed of U.S. persons (citizen or resident aliens) is acting for or on behalf of a foreign power. Disclosure of a target or of the existence of the FISA would reveal the FBI's intelligence activity and method.
A file number that is assigned to a specific intelligence activity and identifies channelization/dissemination instructions for information identifiable with the intelligence activity. Individual file numbers are assigned by FBI Headquarters ("FBIHQ") and field offices and contain the geographical prefix or the originating office, and the case number, which includes the numerical characterization of the type of investigation followed by a chronological number indicating the number assigned to a specific investigation/activity. A disclosure of the intelligence activity file numbers can lead to the exposure of actual current intelligence activities or operations.
The office of origin is the FBI's field office that instituted the original investigation regarding the individual or organization of national security interest. Disclosure of this information could reveal the scope and thrust of the FBI's intelligence activities and methods directed at specific targets of national security interest within a specific time frame.
It is my determination that the release of any portion
-2-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 5 of 70
of the information classified and withheld in this document could reasonably be expected to cause serious damage to the national security, as it would: (1) reveal the existence, methodology, and time frame of the FBI counterintelligence activities directed at specific targets of national security interest (2) reveal the nature, objective, and requirements, and scope of a specific FBI counterintelligence activity or method; (3) disclose the intelligence-gathering capabilities of the activity or method and (4) provide an assessment of the intelligence source penetration during a specific period of time. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gCJthering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Declaration of Christine Kiefer ("Second Kiefer Declaration''), ,,
-3-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 6 of 70
27-28.
-4-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 7 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; PAGE NUMBERS: 3 and 4 Subject: PEN REGISTERS SINCE 10/26/2001 Date of Document: 2/05/2003 Total Number of Pages: 2 Total Number of Pages Containing National Security Information: 2 Description of Document: Report listing the total number of
Pen Registers issued since 10/26/2001
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions contained on pages 1 and ~' (pages 3 and 4). The withheld information identifies project numbers, which are numbers chronologically assigned to each request by the field offices to FBI Headquarters National Security Law Unit (''NSLU") for the issuance of a pen register and the "Completed Date", which is the completion date of the pen register. The withheld information also contains the total number of pen register's issued since 10/26/2001. The release of this informat..i.on could reveal the scope and thrust of the FBI's intelligence activities and methods directed at specific targets of national security interest within a specific time frame. It is my determination that the disclosure of this
-5-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 8 of 70
classified information could reasonably be expected to cause serious damage to the national security, as it would: (1) reveal the existence, methodology, and time frame of FBI counterintelligence activities directed at a specific targets of national security (2) reveal the ~ature, objective, requirements, and scope of a specific FBI counterintelligence activity, (3) disclose the intelligence-gathering capabilities of the activity, and (4) provide an assessment of the intelligence source penetration during a specific period of time. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities during a particular time frame, and an evaluation of hostile intelligence plans and programs that have or have not been compromised. This would allow hostile agents to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the •secret• level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
-6-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 9 of 70

DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION

Exhibit: I; Page Number: 5
Subject: Business Record Order Requests Since 10/26/2001
Date of Document: 2/07/03
Total Number of Pages: 1
Total Number of Pages Containing National Security Information: 1
Description of Document: Report Listing the Number of FISA requests for Business Records since 10/26/2001.

Justification of Deletions

The classified information withheld in this document is

contained within the bracketed portions of page 1. The withheld

information identifies project numbers (ProjiD), which are

numbers chronologically assigned to each FISA request from the

field offices to the National Security Law Unit (NSLU) at FBI Headquarters, the date the NSLU received each request and the

total number of requests received since 10/26/2001. The release

of this information could reveal the scope and thrust of the

FBI's intelligence activities and methods directed at specific targets of national security interest within a specific time

frame.

It is my determination that the disclosure of this

classified information could reasonably be expected to cause

-7-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 10 of 70
serious damage to the national security, as it would: (1) reveal the existence, methodology, and time frame of FBI counterintelligence activities directed at a specific targets of national security (2) reveal the nature, objective, requirements, and scope of a specific FBI counterintelligence activity, (3) disclose the intelligence-gathering capabilities of the activity, and (4) provide an assessment of the intelligence source penetration during a specific period of time. The release of this information could permit hostile governments to accurately evaluate the FBI 1 s counterintelligence capabilities during a particular time frame, and an evaluation of hostile intelligence plans and programs that have or have not been compromised. This would allow hostile agents to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the •secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
-8-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 11 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 30 Subject: Not Indicated Date of Document: Not Indicated Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal Handwritten Note
Justification of Deletions The classified information withheld in this document is contained within the bracketed portion below the handwritten notation "NSL'S-(#s from NSLU)". The information withheld identifies the total number of National Security Letters (NSL's) that where authorized within specific time periods. Disclosure of this information could reveal the scope and thrust of the FBI's intelligence activities and methods directed at specific targets of national security interest within a specific time frame. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) reveal the existence, methodology, and time frame of the FBI counterintelligence
-9-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 12 of 70
activities directed at specific targets of national security interest (2) reveal the nature, objective, and requirements, and scope of a specific FBI counterintelligence activity or method; (3) disclose the intelligence-gathering capabilities of the activity or method and (4) provide an assessment of the intelligence source penetration during a specific period of time. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
-10-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 13 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 31 Subject: Congressional Briefing Re Patriot Act Provisions Date of Document: 8/14/02 4:30PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-Mail
Justifications of Deletions The classified information withheld in this document is contained within the bracketed portion of lines 1-3 of paragraph ~- The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Minneapolis field office in its intelligence gathering operations. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized. It is my determination that release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 14 of 70
utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 15 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 33 Subject: Patriot Act Feedback Date of Document: 8/15/02 7:39PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-Mail
Justifications of Deletions The classified information withheld in this document is contained within the bracketed portion of lines 1-4 of paragraph ~- The information withheld identifies specific problems encountered by the FBI when utilizing a specific investigative tool authorized under the Patriot Act and its recommendations for amendment of Section 216. Disclosure of this information would identify specific activities and methods used by the FBI and how aggressively they are being utilized. It is my determination that release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements of
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 16 of 70
a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 17 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 37 Subject: USA Patriot Act Date of Document: 6/17/2002 2:51PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-Mail
Justifications of Deletions The classified information withheld in this document is contained within the bracketed portion of lines 1-5 of paragraph ~; the bracketed portions of lines 4 and~ of paragraph 3; the bracketed portion of line 3 of paragraph 4; the bracketed portion of lines 1 and 2 of paragraph 5; and the bracketed portion of line 1 of paragraph 6. The information withheld identifies an individual or organization as the subject of an FBI national security investigation and identifies a specific investigatory tool authorized under the Patriot Act, which is currently being utilized by the FBI's Minneapolis field office, in its intelligence gathering operations targeting this subject. Disclosure of this information would reveal the target of the intelligence or counterintelligence investigation and the
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 18 of 70
activities and methods directed a~ the target. It is my determination that disclosure of this
information could reasonably be expected to cause serious damage to the national security as it would: (1) reveal the FBI's ongoing national security investigation; (2) reveal the scope and depth of the FBI's intelligence activities and methods directed against the target; and (3) alert the target and other targets of possible intelligence investigations and allow them to take countermeasures to thwart the FBI's capabilities to monitor and retrieve intelligence information. This would disrupt the intelligence gathering process and severely hamper the FBI's efforts to detect and apprehend those who seek to damage the national security. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ,, 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 19 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 39 Subject: Patriot Act response Date of Document: 8/15/02 5:17PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 1-7 of paragraph ~- The information withheld identifies specific investigatory tools authorized under the Patrict Act, which are currently being utilized and those which have yet to be utilized by a specific squad of the FBI's Los Angles field office in its intelligence gathering operations. The withheld information also details how a specific tool is being utilizec by this squad to obtain intelligence or counterintelligence information. Disclosure of this information would identify specific activities and methods and how aggressively they are being utilized.
It is my determination that the release of this
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 20 of 70
information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the •secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 21 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 40 Subject: Patriot Act Provisions Which Need Further Examination Date of Document: Not Indicated Total Number of Pertinent Pages: 2 Total Number of Pages Containing National Security Information: 1 Description of Document: Report Summarizing possible
Amendments to the Patriot Act
Justifications of Deletions The classified information withheld in this document is contained within the bracketed portion of lines 1 and 2 of paragraph 6. The information withheld contains standard terminology or phraseology which appears in the most recent FBI investigations. Disclosure will reveal the scope and depth of the FBI's investigation of a particular intelligence matter. Stated another way, disclosure will reveal the limitations of the FBI's efforts in a particular investigation or the amount of resources or efforts that the FBI is willing to expend on this particular matter. This allows a target to determine what information has been learned concerning him and what additional steps may be expected. If the information described by this phraseology is shallow, yet the subject was heavily involved in
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 22 of 70
matters under investigation, it alerts the subject to the fact that his activities may continue without fear or detection. Conversely, if the information is substantial, it will prompt the subject to alter his course of conduct. Although these results may not occur in the narrow context of this case, the results described are likely to occur if information of this nature is routinely released.
It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security as it would reveal a specific intelligence activity or method. This information is properly classified at the "Secret• level and withheld pursuant to E.O. 12, 958, section 1. 5 (c) . See Second Kiefer Declaration, ~~ 27-
28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 23 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 42 Subject: Patriot Act Provisions Which Need Further Examination Date of Document: Not Indicated Total Number of Pertinent Pages: 2 Total Number of Pages Containing National Security Information: 1 Description of Document: Report Summarizing possible
Amendments to the Patriot Act
Justifications of Deletions The classified information withheld in this document is contained on page 1 within the bracketed portion of lines 1-2 of paragraph 6. The withheld information is the same as previously addressed on page 40; therefore, the justifications for withholding this information are the same.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 24 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 45 Subject: Briefing on the Patriot Act Date of Document: 8/1/02 10:46AM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained in paragraph 2, withheld in its entirety, under the sub-caption "Usage". The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Kansas City field office in its intelligence gathering operations. The withheld information also indicates the number of times each tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 25 of 70
to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromise an allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 26 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 46 Subject: Request for CDC assistance Date of Document: 8/16/02 12:01PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 2, 4 and 5 of paragraph 2. The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Little Rock field office in its intelligence gathering operations. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently
-24-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 27 of 70
utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ,~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 28 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 47 Subject: Request for Assistance from the CDCs Date of Document: 8/16/02 5:03PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 1-3 of paragraph ~- The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Birmingham field office in its intelligence gathering operations. The withheld information also indicates the approximate number of times each tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized.
It is my determination that the release of this information could reasonably be expected to cause serious damage
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 29 of 70
to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 30 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 49 Subject: Request for Assistance from the CDCs Date of Document: 8/15/02 5:29PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portion of line 1 of paragraph 1. The information withheld identifies a specific investigatory tool authorized under the Patriot Act, which has been or is currently being utilized by the FBI's Boston field office in its intelligence gathering operations. The withheld information also indicates the approximate number of times this tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized.
It lS my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 31 of 70
to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity ~r method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 32 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 51 Subject: Use of Patriot Act Date of Document: 8/15/02 12:29PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 3-8 and lines 14-18 below paragraph 1. The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Washington field office in its intelligence gathering operations. The withheld information also indicates the number of times each tool has been utilized by this field office. Disclosure of this information would identify specific activities und methods used by this field office and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage
-30-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 33 of 70
to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromise an allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the •secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ,, 27-28.
Also, withheld specifically within the bracketed portions of lines 3, 5, 6, 8, 14, 16 and 17 is the identity of investigative units of the Washington Field Office. The withheld units specialize in the investigation of specific intelligence
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 34 of 70 cases or ac~ivities. Disclosure of these units, when combined with other known or disclosed information, could reasonably be expected to identify specific intelligence activities. It is my determination that the disclosure of the investigative unit withheld from release could reasonably be expected to cause serious damage to the national security, as it would reveal actual intelligence activities within a specific location. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 35 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 52 Subject: Re: Patriot Act Date of Document: 8/15/02 3:04PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld ln this document is contained in paragraph 3,withheld in its entirety. The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Omaha field office in its intelligence gathering operations. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently
-33-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 36 of 70
utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromise an allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 37 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 53 Subject: Request for Assistance from the CDCs Date of Document: 8/15/02 12:26PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 2-5 of paragraph 1. The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being ~tilized by the FBI's Phoenix field office in its intelligence gathering operations. The withheld information also indicates the number of times each tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods and how aggressively they are being uLilized. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 38 of 70
to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromise an allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ,, 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 39 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 54 Subject: Patriot Act Date of Document: 8/16/02 2:32PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 3-5; 11 and 12; and 16-18 below paragraph 1. The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's San Francisco field office in its intelligence gathering operations. The withheld information also indicates the number of times each tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 40 of 70
to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromise an allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 41 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 55 Subject: USA Patriot Act Date of Document: 8/16/02 4:31PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 3-7 of the paragraph. The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Portland field office in its intelligence gathering operations. The withheld information also indicates the number of times each tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 42 of 70
to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromise an allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 43 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 56 Subject: Investigative tools under the Patriot Act Date of Document: 8/12/02 6:38PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 1, 8 and 9 of paragraph 1. The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Sacramento field office in its intelligence gathering operations. The withheld information also indicates the approximate number of times each tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized.
It is my determination that the release of this information could reasonably be expected to cause serious damage
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 44 of 70
to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1. 5 (c) . See Second Kiefer Declaration, ,, 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 45 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Numbers: 58 and 59 Subject: Routing Slip and attachment dated 8/13/03 Date of Document: 8/15/02 4:38PM Total Number of Pages: 2 Total Number of Pages Containing National Security Information: 2 Description of Document: FBI Memorandum
Justification of Deletions The classified information withheld in this document is as follows: Page 1, (page 58): The bracketed portion located in the "From" line contains the designated unit within the Miami field office which specializes in the investigation of specific intelligence cases or activities. Disclosure of the unit, when combined with other known or disclosed information, can reasonably be expected to identify the specific intelligence activity. It is my determination that the disclosure of the investigative unit release could reasonably be expected to cause serious damage to the national security, as it would reveal actual intelligence activities within a specific location. See
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 46 of 70
Second Kiefer Declaration, ~~ 27-28. The bracketed portions of lines 1-4 of paragraph 1 and
paragraphs 2 and 3,withheld in their entirety, identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Miami field office in its intelligence gathering operations. Disclosure of this information would identify specific activities and methods used and how aggressively they are being utilized.
It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 47 of 70
and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the •secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
Page 2, (page 59): The bracketed portion of line 1 located in the upper left margin contains the designated unit which specializes in the investigation of specific intelligence cases or activities. Disclosure of the unit, when cornbined with other known or disclosed information can reasonably be expected to identify the specific intelligence activity.
It is my determination that the disclosure of the investigative unit withheld from release could reasonably be expected to cause serious damage to the national security, as it would reveal actual intelligence activities within a specific location. See Second Kiefer Declaration, ~~ 27-28.
The bracketed portions of lines 4, 5, 11 ,12 and 15 identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Miami field office in ito intelligence gathering operations. Disclosure of this information would identify specific activities and methods used and how aggressively they are being utilized.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 48 of 70
It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or me~hods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the •secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
-46-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 49 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 68 Subject: Staff Brief re: Patriot Act Date of Document: 8/8/02 2:11PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of line 1 under the subcaption "Baltimore" and line 3 under the sub-caption "Kansas City". The information withheld identifies a specific investigatory tool authorized under the Patriot Act, which has been or is currently being utilized by the FBI's Baltimore and Kansas City field offices in their intelligence gathering operations. The withheld information also indicates the number of times each tool has been utilized by each of these field offices. Disclosure of this information would identify specific activities and methods used by these field offices and how aggressively they are being utilized. It is my determination that the release of this
-47-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 50 of 70
information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the •secret• level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
-48-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 51 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 70 Subject: Patriot Act Date of Document: 8/15/02 2:50PM Total Number of Pages: 2 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained on page 2, in paragraph 2, which is withheld in its entirety. The information withheld identifies a specific investigatory tool authorized under the Patriot Act, which has been or is currently being utilized by the FBI's New Orleans field office in its intelligence gathering operations. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently
-49-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 52 of 70
utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
-50-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 53 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 71 Subject: Re: Request for Assistance from the CDCs Date of Document: 8/16/02 10:15AM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document lS contained within the bracketed portions of lines 1-3 under the sub-caption "Albany Division". The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Albany field office in its intelligence gathering operations. The withheld information also indicates the number of times each tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage
-51-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 54 of 70
to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromise an allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1. 5 (c) . See Second Kiefer Declaration, ~~ 27-28.
In addition, the withheld information contained within the brackets in the lower left portion of the document contains a handwritten notation which identifies a specific investigatory tool authorized under the Patriot Act, which has been or is
-52-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 55 of 70
currently being utilized by the FBI's field offices in their intelligence gathering operations. The withheld information also indicates the total number of times this specific tool has been utilized by field offices during a specific time frame. Disclosure of this information would identify specific activities and methods used by the field offices and how aggressively they are being utilized.
It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not
been compromise an allow them to devioc countermeasures to
circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more
-53-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 56 of 70 difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
-54-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 57 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 72 Subject: Re: CDC Request re Patriot Act Enhancements Date of Document: B/19/02 2:53PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained in paragraph 5, withheld in its entirety. The information withheld identifies a specific investigatory tool authorized under the Patriot Act, which has been or is currently being utilized by the FBI's Norfolk field office in its intelligence gathering operations. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently
-55-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 58 of 70
utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromise an allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
-56-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 59 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 73 Subject: Request for Assistance from the CDCs Date of Document: 8/15/02 4:56PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 3 and ~ of paragraph 1. The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Atlanta field office in its intelligence gathering operations. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is cur~ently
-57-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 60 of 70
utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1. 5 (c) . See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 61 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 75 Subject: Request for Assistance from the CDCs Date of Document: 8/16/02 2:03PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of lines 1-3 of paragraph 1. The information withheld ~dentifies a specific investigatory tool authorized under the Patriot Act, which has been or is currently being utilized by the FBI's Honolulu field office in its intelligence gathering operations. The withheld information also indicates the frequency this tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized. It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities
-59-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 62 of 70
to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromise an allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 63 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 76 Subject: Staff Brief re: Patriot Act Date of Document: 8/8/02 2:23PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of line 1 under the subcaption "Baltimore" and line 3 ur_der the sub-caption "Kansas City". The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Baltimore and Kansas City field offices in their intelligence gathering operations. The withheld information also indicates the number of times each tool has been utilized by each of these field offices. Disclosure of this information would identify specific activities and methods used by these field offices and how aggressively they are being utilized. It is my determination that the release of this
-61-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 64 of 70
information could reasonably be expected to cause serious damage to the national security, as it would: (1} allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit' hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret '1 level and withheld pursuant to E. 0. 12 1 958 1 Section 1. 5 (c) . See Second Kiefer Declaration, ~~ 2 7-28.
-62-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 65 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 77 Subject: PUBLIC LAW 107-56-0CT. 26,2001 Date of Document: 8/21/02 Total Number of Pages: 2 Total Number of Pages Containing National Security Information: 1 Description of Document: Table of content from the USA Patriot
Act of 2001
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of the lower left margin and the lower right margin. The withheld information indicates the approximate number of times each investigatory tool authorized under the Patriot Act has been utilized by the FBI in its intelligence gathering operations. Disclosure of this information would identify specific activities and methods and how aggressively they are being utilized.
It is my determination that the release of this information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering
-63-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 66 of 70
operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1. 5 (c) . See Second Kiefer Declaration, ~~ 27-28.
-64-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 67 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: I; Page Number: 79 Subject: Fwd: Message to all CDCs/ADCs Date of Document: 8/13/02 4:29PM Total Number of Pages: 1 Total Number of Pages Containing National Security Information: 1 Description of Document: Internal E-mail
Justification of Deletions The classified information withheld in this document is contained within paragraphs 2, 4,and 6, withheld in their entirety, and the bracketed portions of lines 1 and 3 of paragraph 7. The information withheld identifies specific investigatory tools authorized under the Patriot Act, which have been or are currently being utilized by the FBI's Jacksonville field office in its intelligence gathering operations. The withheld information also indicates the approximate number of times each tool has been utilized by this field office. Disclosure of this information would identify specific activities and methods used by this field office and how aggressively they are being utilized.
It is my determination that the release of this
-65-

Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 68 of 70
information could reasonably be expected to cause serious damage to the national security, as it would: (1) allow hostile entities to discover what activities or methods the FBI is currently utilizing in its intelligence or counterintelligence gathering operations; (2) reveal the nature, objective, and requirements, of a specific FBI counterintelligence activity or method; and (3) disclose the intelligence-gathering capabilities of the activity or method. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities within specific areas and during a particular time frame. This would provide hostile agents with an evaluation of hostile intelligence plans and programs that have or have not been compromised and allow them to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 69 of 70
DESCRIPTION OF DOCUMENT CONTAINING NATIONAL SECURITY INFORMATION
Exhibit: II; Page Numbers: 38-43 Subject: Transactional Records NSLs Since 10/26/2001 Date of Document: Tuesday, January 21, 2003 Total Number of Pages: 6 Total Number of Pages Containing National Security Information: 6 Description of Document: Computer generated report
Justification of Deletions The classified information withheld in this document is contained within the bracketed portions of pages 1-6. The withheld information identifies project numbers, which are numbers chronologically assigned to each request to FBI Headquarters for the issuance o.f a National Security Letter ("NSL") ,and the date FBI Headquarters approved and issued the NSL. The release of this information could reveal the scope and thrust of the FBI's intelligence activities and methods directed at specific targets of national security interest within a specific time.
It is my determination that the disclosure of this classified information could reasonably be expected to cause serious damage to the national security, as it would:
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Case 1:02-cv-02077-ESH Document 20-7 Filed 03/07/03 Page 70 of 70
(1) reveal the existence, methodology, and time frame of FBI counterintelligence activities directed at specific targets of national security interest; (2) reveal the nature, objective, requirements, and scope of a specific FBI counterintelligence activity; (3) disclose the intelligence-gathering capabilities of the activity; and (4) provide an assessment of the intelligence source penetration during a specific period of time. The release of this information could permit hostile governments to accurately evaluate the FBI's counterintelligence capabilities during a particular time frame, and an evaluation of hostile intelligence plans and programs that have or have not been compromised. This would allow hostile agents to devise countermeasures to circumvent these intelligence activities and render them useless in providing intelligence information, as well as make present and prospective U.S. counterintelligence operations more difficult if not impossible. This would severely disrupt the FBI's intelligence gathering capabilities and adversely impact the national defense. This information is properly classified at the "Secret" level and withheld pursuant
to E.O. 12,958, Section 1.5 (c). See Second Kiefer Declaration, ~~ 27-28.
-68-

 
 Case: 1:02-cv-2077 As of: 10/04/2018 05:15 PM EDT 1 of 5
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:02−cv−02077−ESH

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

Date Filed: 10/24/2002 Date Terminated: 05/19/2003 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

AMERICAN CIVIL LIBERTIES UNION

represented by Ann Beeson AMERICAN CIVIL LIBERTIES UNION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2601 Fax: (212) 549−2629 Email: annb@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

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

Plaintiff
ELECTRONIC PRIVACY INFORMATION CENTER

represented by Ann Beeson (See above for address)

Case: 1:02-cv-2077 As of: 10/04/2018 05:15 PM EDT 2 of 5

LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

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

Plaintiff
AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION

represented by Ann Beeson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

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

Plaintiff
FREEDOM TO READ FOUNDATION

represented by Ann Beeson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

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

V. Defendant

Case: 1:02-cv-2077 As of: 10/04/2018 05:15 PM EDT 3 of 5

UNITED STATES DEPARTMENT OF JUSTICE

represented by Anthony Joseph Coppolino U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 514−4782 Fax: (202) 616−8470 Email: tony.coppolino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Room 7132 Washington, DC 20530 (202) 514−2205 Fax: (202) 616−8470 Email: marcia.berman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/24/2002
10/24/2002 10/24/2002 11/13/2002
11/13/2002 11/18/2002 11/19/2002 11/19/2002 11/19/2002 11/22/2002

# Docket Text
1 COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $150 ). Filed by AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION. (nmr, ) (Entered: 10/25/2002)
SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE , U.S. Attorney and U.S. Attorney General (nmr, ) (Entered: 10/25/2002)
2 LCvR 26.1 − CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests filed by plaintiffs. (nmr, ) (Entered: 10/25/2002)
3 MOTION for Preliminary Injunction by AMERICAN CIVIL LIBERTIES UNION. (Attachments: # 1 Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction# 2 Affidavit Declaration of Jameel Jaffer# 3 Exhibit Ex. 1# 4 Exhibit Ex. 2# 5 Exhibit Ex. 3# 6 Exhibit Ex. 4# 7 Exhibit Ex. 5# 8 Exhibit Ex. 6# 9 Exhibit Ex. 7# 10 Exhibit Ex. 8# 11 Exhibit Ex. 9# 12 Exhibit Ex. 10# 13 Exhibit Ex. 11# 14 Exhibit Ex. 12# 15 Exhibit Ex. 13# 16 Exhibit Ex. 14# 17 Exhibit Ex. 15# 18 Exhibit Ex. 16)(Sobel, David) (Entered: 11/13/2002)
4 MOTION Admission Pro Hac Vice by AMERICAN CIVIL LIBERTIES UNION. (Sobel, David) (Entered: 11/13/2002)
ORDER granting Motion for admission pro hac vice 4 . Signed by Judge Ellen Segal Huvelle on 11/18/02. (BL, ) (Entered: 11/18/2002)
5 Unopposed MOTION for Extension of Time to File Response/Reply re 3 to Plaintiff's Motion for a Preliminary Injunction by DEPARTMENT OF JUSTICE. (Coppolino, Anthony) (Entered: 11/19/2002)
6 NOTICE of Appearance by DEPARTMENT OF JUSTICE (Coppolino, Anthony) (Entered: 11/19/2002)
7 ORDER granting defendant's unopposed motion to extend time 5 . Signed by Judge Ellen Segal Huvelle on 11/19/02. (BL, ) (Entered: 11/19/2002)
8 Memorandum in opposition to motion re 3 Plaintiffs' Motion for a Preliminary Injunction filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit Transcript Civil Action 00−1849)(Coppolino, Anthony) Additional attachment(s) added on 11/25/2002 (nmr, ). (Entered: 11/22/2002)

Case: 1:02-cv-2077 As of: 10/04/2018 05:15 PM EDT 4 of 5

11/22/2002 11/25/2002 11/25/2002 11/25/2002 11/26/2002
11/26/2002
11/26/2002 01/22/2003 01/24/2003
01/24/2003 01/27/2003 01/31/2003 02/04/2003
02/04/2003
02/27/2003 02/27/2003 03/04/2003

9 ENTERED IN ERROR.....AFFIDAVIT in Opposition re 3 MOTION for Preliminary Injunction Declaration of Robert O. Davis filed by DEPARTMENT OF JUSTICE. (Coppolino, Anthony) Modified on 11/25/2002 (nmr, ). (Entered: 11/22/2002)
10 NOTICE by DEPARTMENT OF JUSTICE re 8 Memorandum in Opposition, Defendant's Notice of Filing of Declarations (Attachments: # 1 # 2 # 3 # 4)(Coppolino, Anthony) (Entered: 11/25/2002)
11 Defendant's ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Coppolino, Anthony) (Entered: 11/25/2002)
Set/Reset Hearings: Preliminary Injunction Hearing set for 11/26/2002 02:30 PM in Courtroom 18 before Ellen S. Huvelle. (gdf, ) (Entered: 11/25/2002)
Minute Entry Preliminary Injunction Hearing held before Judge Ellen Segal Huvelle on 11/26/2002 re 3 denying as moot the Motion for Preliminary Injunction filed by AMERICAN CIVIL LIBERTIES UNION. (Court Reporter Beth Wasserman, Miller Reporting.) (gdf, ) (Entered: 11/26/2002)
12 ORDER denying 3 Motion for Preliminary Injunction. Further ordered that defendant shall complete its processing of plaintiffs' FOIA requests, not later than January 15, 2003; and it is further ordered that plaintiffs shall inform defendant in writing of the withholdings that it wishes to challenge no later than January 17, 2003; and it is further ordered that defendant's summary judgment motions shall be filed by 1/24/03; plaintiffs' response by 2/6/03 and defendant's reply by 2/17/03. Signed by Judge Ellen S. Huvelle on 11/26/02. (BL, ) (Entered: 11/26/2002)
Set Scheduling Order Deadlines: Summary Judgment Motion due by 1/24/2002. (BL, ) (Entered: 11/26/2002)
13 TRANSCRIPT of Proceedings held on 11/26/02 before Judge Ellen Segal Huvelle. Court Reporter: Elizabeth L. Wasserman. (nmr, ) (Entered: 01/23/2003)
14 MOTION for Partial Summary Judgment Defendant's Motion for Partial Summary Judgment by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Declaration of James A. Baker# 2 Affidavit Second Declaration of Melanie Ann Pustay# 3 Exhibit Exhibits to Defendant's Motion for Summary Judgment)(Coppolino, Anthony) (Entered: 01/24/2003)
15 MOTION for Extension of Time to File Defendant's Motion for Summary Judgement until 1/31/03/I> by DEPARTMENT OF JUSTICE. (Coppolino, Anthony) Modified on 1/27/2003 (mpt, ). (Entered: 01/24/2003)
Minute Order granting 15 Motion for Extension of Time to File defendant's summary judgment motion to 1/31/03. Signed by Judge Ellen S. Huvelle on 1/27/03. (BL, ) (Entered: 01/27/2003)
16 Second MOTION for Extension of Time to File Motion for Summary Judgment by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Declaration of David M. Hardy and Exhibits)(Coppolino, Anthony) (Entered: 01/31/2003)
Minute Order granting 16 unopposed motion to extend the date on which the FBI's complete response to plaintiffs' FOIA request, summary judgment motion and Vaughn declaration are due. Signed by Judge Ellen S. Huvelle on 2/4/03. (BL, ) (Entered: 02/04/2003)
17 NOTICE of Appearance by Arthur B. Spitzer on behalf of AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, AMERICAN CIVIL LIBERTIES UNION, ELECTRONIC PRIVACY INFORMATION CENTER, FREEDOM TO READ FOUNDATION (mpt, ) (Entered: 02/06/2003)
18 NOTICE of Appearance by Marcia Berman on behalf of DEPARTMENT OF JUSTICE (Berman, Marcia) (Entered: 02/27/2003)
19 Consent MOTION for Extension of Time to file summary judgment motion by DEPARTMENT OF JUSTICE. (Berman, Marcia) (Entered: 02/27/2003)
Minute Order granting 19 Motion for Extension of Time for FBI to file its summary judgment motion (to 3/7/03), plaintiff's oppostion (to 3/21/03) and DOJ's reply (to

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03/07/2003
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3/28/03). Signed by Judge Ellen S. Huvelle on 3/4/03. (BL, ) (Entered: 03/04/2003)
20 MOTION for Summary Judgment on Behalf of the FBI by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Revised Second Declaration of Christine Kiefer# 2 Affidavit Declaration of Charles Steele# 3 Exhibit Exhibit A to FBI's Mtn for Summary Judgment# 4 Exhibit Exhibit I to FBI's Mtn for Summary Judgment# 5 Exhibit Exhibit II to FBI's Mtn for Summary Judgment# 6 Exhibit Exhibit III to FBI's Mtn for Summary Judgment# 7 Exhibit Exhibit IV to FBI's Mtn for Summary Judgment)(Berman, Marcia) (Entered: 03/07/2003)
21 Memorandum in opposition to motion of defendant DOJ for partial summary judgment and for summary judgment filed by AMERICAN CIVIL LIBERTIES UNION. (Attachments: # 1 Exhibit 1)(Sobel, David) (Entered: 03/21/2003)
22 Cross MOTION for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION. (Attachments: # 1 Exhibit 1# 2 Text of Proposed Order)(Sobel, David) (Entered: 03/21/2003)
23 REPLY in support of motion re 14 for summary judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Affidavit Third Declaration of Melanie Ann Pustay)(Berman, Marcia) (Entered: 03/28/2003)
24 REPLY in support of motion re 22 Plaintiffs' Cross−Motion for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION. (Sobel, David) (Entered: 04/04/2003)
25 ORDER denying 22 Motion for Summary Judgment, granting 14 Motion for Partial Summary Judgment, granting 20 Motion for Summary Judgment . Signed by Judge Ellen S. Huvelle on 5/19/03. (BL, ) (Entered: 05/19/2003)
26 MEMORANDUM AND OPINION. Signed by Judge Ellen S. Huvelle on 5/19/03. (BL, ) (Entered: 05/19/2003)