submitted as part of the first proposed application or other submission that raises the
issue.

Rule 12. Submission of Targeting and Minimization Procedures. In a matter involving
Court review of targeting or minimization procedures, such procedures may be set out in full in
the government’s submission or may be incorporated by reference to procedures approved in a
prior docket. Procedures that are incorporated by reference to a prior docket may be
supplemented, but not otherwise modified, in the government’s submission. Otherwise,
proposed procedures must be set forth in a clear and self-contained manner, without resort to
cross-referencing.

Rule 13. Correction of Misstatement or Omission; Disclosure of Non-Compliance.
(a) Correction of Material Facts. If the government discovers that a submission to the
Court contained a misstatement or omission of material fact, the government, in writing,
must immediately inform the Judge to whom the submission was made of:
(1) the misstatement or omission;
(2) any necessary correction;
(3) the facts and circumstances relevant to the misstatement or omission;
(4) any modifications the government has made or proposes to make in how it will
implement any authority or approval granted by the Court; and
(5) how the government proposes to dispose of or treat any information obtained
as a result of the misstatement or omission.
(b) Disclosure of Non-Compliance. If the government discovers that any authority or
approval granted by the Court has been implemented in a manner that did not comply
with the Court’s authorization or approval or with applicable law, the government, in
writing, must immediately inform the Judge to whom the submission was made of:
(1) the non-compliance;
(2) the facts and circumstances relevant to the non-compliance;
(3) any modifications the government has made or proposes to make in how it will
implement any authority or approval granted by the Court; and
(4) how the government proposes to dispose of or treat any information obtained
as a result of the non-compliance.

Rule 14. Motions to Amend Court Orders. Unless the Judge who issued the order granting an
application directs otherwise, a motion to amend the order may be presented to any other Judge.

Rule 15. Sequestration. Except as required by Court-approved minimization procedures, the
government must not submit material for sequestration with the Court without the prior approval
of the Presiding Judge. To obtain such approval, the government must, prior to tendering the
material to the Court for sequestration, file a motion stating the circumstances of the material’s
acquisition and explaining why it is necessary for such material to be retained in the custody of
the Court.

5.



Title VI. Supplemental Procedures for Proceedings Under 50 U.S.C. § 1881a(h)

AOE) 7
21. Petition to Modify or Set Aside a Directive ...... 7
22. Petition to Compel Compliance With a Directive . 7
23. Contents of Petition .............0.e eee eee 8
24, Response ............0. eee ee 8
25. Length of Petition and Response; Other Papers . 8
26. Notification of Presiding Judge .. 8
27. Assignment ..........0.0..000 08 8
28. Review of Petition to Modify or Set Aside a Directive ............ 00. c cece aces 9
29. Review of Petition to Compel Compliance Pursuant to 50 U.S.C. § 1881a(h)(5(C) ...... 9
30. In Camera Review 1.0.0.0... ccc c cece cece eee eee een enna eee ents 9
31. Appeal 0... cece eee e eee een net e eee teen eben ene ee 9
Title VH. Supplemental Procedures for Proceedings Under 50 U.S.C. § 1861(f)
SRS) 10
33. Petition Challenging Production or Nondisclosure Order .10
34. Contents of Petition ........ 0... ccc cece eee eee ...10
35. Length of Petition ......... ...10
36. Request to Stay Production...... -10
37. Notification of Presiding Judge .. -10
38. Assignment ... oll
39. Initial Review . oll
40. Response to Petition; Other Papers . . voll
41. Rulings on Non-frivolous Petitions 2.0.0.0... 0... cece cece cnet e eee eens 11
42. Failure to Comply
43. In Camera Review . .
CCR 2) |
Title VIII. En Banc Proceedings
45. Standard for Hearing or Rehearing En Banc... 2.0... 0c ccc cece eee eee ee 12
46. Initial Hearing En Banc on Request of a Party . . «12
47. Rehearing En Banc on Petition by a Party ....... +12
48. Circulation of En Banc Petitions and Responses .. 2.13
49. Court-Initiated En Banc Proceedings ........... ++. 13
50. Polling ..............c cece eee 2.13
51. Stay Pending En Banc Review . .. 13
52. Supplemental Briefing ................0% .. 13
53. Order Granting or Denying En Banc Review ..........0 000. e cece cece cece enue e eee 13

-ii-



Rule 28. Review of Petition to Modify or Set Aside a Directive.

(a) Initial Review Pursuant to 50 U.S.C. § 1881a(h)(4)(D).
(1) A Judge must conduct an initial review of a petition to modify or set aside a
directive within five days after being assigned such petition.
(2) If the Judge determines that the provider’s claims, defenses, or other legal
contentions are not warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law, the
Judge must promptly deny such petition, affirm the directive, and order the
provider to comply with the directive. Upon making such determination or
promptly thereafter, the Judge must provide a written statement of reasons. The
Clerk must transmit the ruling and statement of reasons to the provider and the
government.

(b) Plenary Review Pursuant to 50 U.S.C. § 1881a(h)(4)(E).
(1) If the Judge determines that the petition requires plenary review, the Court
must promptly notify the parties. The Judge must provide a written statement of
reasons for the determination.
(2) The Judge must affirm, modify, or set aside the directive that is the subject of
the petition within the time permitted under 50 U.S.C. §§ 1881a(h)(4)(E) and
1881a()(2).
(3) The Judge may hold a hearing or conduct proceedings solely on the papers
filed by the provider and the government.

(c) Burden. Pursuant to 50 U.S.C. § 1881a(h)(4)(C), a Judge may grant the petition only

if the Judge finds that the challenged directive does not meet the requirements of 50

U.S.C. § 1881a or is otherwise unlawful.

(d) Continued Effect. Pursuant to 50 U.S.C. § 1881a(h)(4)(F), any directive not

explicitly modified or set aside by the Judge remains in full effect.

Rule 29. Review of Petition to Compel Compliance Pursuant to 50 U.S.C. § 1881a(h)(5)(C).
(a) The Judge reviewing the government’s petition to compel compliance with a directive
must, within the time permitted under 50 U.S.C. §§ 1881a(h)(5)(C) and 1881a(j)(2), issue
an order requiring the provider to comply with the directive or any part of it, as issued or
as modified, if the Judge finds that the directive meets the requirements of 50 U.S.C.

§ 1881a and is otherwise lawful.

(b) The Judge must provide a written statement of reasons for the determination. The
Clerk must transmit the ruling and statement of reasons to the provider and the
government.

Rule 30. In Camera Review. Pursuant to 50 U.S.C. § 1803(e)(2), the Court must review a
petition under 50 U.S.C. § 1881a(h) and conduct related proceedings in camera.

Rule 31. Appeal. Pursuant to 50 U.S.C. § 1881a(h)(6) and subject to Rules 54 through 59 of

these Rules, the government or the provider may petition the Foreign Intelligence Surveillance
Court of Review (“Court of Review”) to review the Judge’s ruling.

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Honorable Patrick J. Leahy
July 29, 2013
Page 5

Court’s legal staff may request a meeting with the government to discuss a proposed application.
Also at the direction of the Presiding Judge or a judge who has been assigned to handle the
Section 702 application, the Court legal staff may request additional information from the
government or convey a judge’s concerns about the legal sufficiency of a proposed Section 702
application. Following these interactions, the government files a final Section 702 application,
which the government may have elected to amend based on any concerns raised by the judge.

The judge reviews the final Section 702 application and may set a hearing if he or she has
additional questions about it. If the judge finds (based on the written submission alone or the
written submission in combination with a hearing) that the certification contains all of the
required elements, and that the targeting and minimization procedures adopted in accordance
with 50 U.S.C. §§ 1881a(d) & (e) are consistent with the requirements of those subsections and
with the Fourth Amendment to the Constitution of the United States, the judge enters an order
approving the certification in accordance with 50 U.S.C. § 1881a(i)(3)(A). As required by 50
U.S.C. § 1881a(i)(3)(C), the judge also issues an opinion in support of the order. If the judge
finds that the certification does not contain the required elements or the targeting and
minimization procedures are inconsistent with the requirements of 50 U.S.C. §§ 1881a(d) & (e),
or the Fourth Amendment, the judge will, pursuant to 50 U.S.C. § 1881a(i)(3)(B), issue an order
directing the government to, at the government’s election and to the extent required by the
Court’s order, either correct any deficiency identified by the Court’s order not later than 30 days
after the date on which the Court issues the order, or cease, or not begin, the implementation of
the authorization for which the certification was submitted. Subsequent review of any remedial
measures taken by the government may then be required and may result in another order and
opinion pursuant to 50 U.S.C. § 1881a(i).

2. When considering such applications and submissions, please describe the interaction
between the government and the Court (including both judges and court staff), including
any hearings, meetings, or other means through which the Court has the opportunity to
ask questions or seek additional information from the government. Please describe how
Srequently such exchanges occur, and generally what types of additional information that
the Court might request of the government, if any. Please also describe how frequently
the Court asks the government to make changes to its applications and submissions
before ruling.

The process through which the Court interacts with the government in reviewing
proposed applications, seeking additional information, conveying Court concerns, and
adjudicating final applications, is very similar to the process employed by other federal courts in
considering applications for wiretap orders under Title III (discussed in notes 2 and 6 above).

Under FISA practice, the first set of interactions often take place at the staff level. The
Court’s legal staff frequently interacts with the government in various ways in the context of



Rule 16. Returns.

(a) Time for Filing.
(1) Search Orders. Unless the Court directs otherwise, a return must be made
and filed either at the time of submission of a proposed renewal application or
within 90 days of the execution of a search order, whichever is sooner.
(2) Other Orders. The Court may direct the filing of other returns at a time and
in a manner that it deems appropriate.

(b) Contents. The return must:
(1) notify the Court of the execution of the order;
(2) describe the circumstances and results of the search or other activity including,
where appropriate, an inventory;
(3) certify that the execution was in conformity with the order or describe and
explain any deviation from the order; and
(4) include any other information as the Court may direct.

Title V. Hearings, Orders, and Enforcement

Rule 17. Hearings.
(a) Scheduling. The Judge to whom a matter is presented or assigned must determine
whether a hearing is necessary and, if so, set the time and place of the hearing.
(b) Ex Parte. Except as the Court otherwise directs or the Rules otherwise provide, a
hearing in a non-adversarial matter must be ex parte and conducted within the Court’s
secure facility.
(c) Appearances. Unless excused, the government official providing the factual
information in an application or certification and an attorney for the applicant must attend
the hearing, along with other representatives of the government, and any other party, as
the Court may direct or permit.
(d) Testimony; Oath; Recording of Proceedings. A Judge may take testimony under
oath and receive other evidence. The testimony may be recorded electronically or as the
Judge may otherwise direct, consistent with the security measures referenced in Rule 3.

Rule 18. Court Orders.

(a) Citations. All orders must contain citations to pertinent provisions of the Act.

(b) Denying Applications.
(1) Written Statement of Reasons. If a Judge denies the government’s
application, the Judge must immediately provide a written statement of each
reason for the decision and cause a copy of the statement to be served on the
government.
(2) Previously Denied Application. If a Judge denies an application or other
request for relief by the government, any subsequent submission on the matter
must be referred to that Judge.

-6-



(b) Affirming the Order. If the Judge does not modify or set aside the production or
nondisclosure order, the Judge must affirm it and order the recipient promptly to comply
with it.

(c) Transmitting the Judge’s Ruling. The Clerk must transmit the Judge’s ruling and
written statement of reasons to the petitioner and the government.

Rule 42. Failure to Comply. If a recipient fails to comply with an order affirmed under 50
U.S.C. § 1861(f), the government may file a motion seeking immediate enforcement of the
affirmed order. The Court may consider the government’s motion without receiving additional
submissions or convening further proceedings on the matter.

Rule 43. In Camera Review. Pursuant to 50 U.S.C. § 1803(e)(2), the Court must review a
petition under 50 U.S.C. § 1861(f) and conduct related proceedings in camera.

Rule 44. Appeal. Pursuant to 50 U.S.C. § 1861(f)(3) and subject to Rules 54 through 59 of
these Rules, the government or the petitioner may petition the Court of Review to review the
Judge’s ruling.

Title VIII. En Banc Proceedings

Rule 45. Standard for Hearing or Rehearing En Banc. Pursuant to 50 U.S.C.

§ 1803(a)(2)(A), the Court may order a hearing or rehearing en banc only if it is necessary to
secure or maintain uniformity of the Court’s decisions, or the proceeding involves a question of
exceptional importance.

Rule 46, Initial Hearing En Banc on Request of a Party. The government in any proceeding,
or a party in a proceeding under 50 U.S.C. § 1861(f) or 50 U.S.C. § 1881a(h)(4)-(5), may request
that the matter be entertained from the outset by the full Court. However, initial hearings en banc
are extraordinary and will be ordered only when a majority of the Judges determines that a matter
is of such immediate and extraordinary importance that initial consideration by the en banc Court
is necessary, and en banc review is feasible in light of applicable time constraints on Court
action.

Rule 47. Rehearing En Banc on Petition by a Party.
(a) Timing of Petition and Response. A party may file a petition for rehearing en banc
permitted under 50 U.S.C. § 1803(a)(2) no later than 30 days after the challenged order or
decision is entered. In an adversarial proceeding in which a petition for rehearing en banc
is permitted under § 1803(a)(2), a party must file a response to the petition within 14 days
after filing and service of the petition.
(b) Length of Petition and Response. Unless the Court directs otherwise, a petition for
rehearing en banc and a response to a petition for rehearing en banc each must not exceed
15 pages, including any attachments (other than the challenged order or decision).

-12-



Rule 22. Petition to Compel Compliance With a Directive. In the event a provider fails to
comply with a directive issued under 50 U.S.C. § 1881a(h)(1), the government may, pursuant to
50 U.S.C. § 1881a(h)(5), file a petition to compel compliance with the directive.

Rule 23. Contents of Petition. The petition must:
(a) state clearly the relief being sought;
(b) state concisely the factual and legal grounds for modifying, setting aside, or
compelling compliance with the directive at issue;
(c) include a copy of the directive and state the date on which the directive was served on
the provider; and
(d) state whether a hearing is requested.

Rule 24. Response.
(a) By Government. The government may, within seven days following notification
under Rule 28(b) that plenary review is necessary, file a response to a provider’s petition.
(b) By Provider. The provider may, within seven days after service of a petition by the
government to compel compliance, file a response to the petition.

Rule 25. Length of Petition and Response; Other Papers.
(a) Length. Unless the Court directs otherwise, a petition and response each must not
exceed 20 pages in length, including any attachments (other than a copy of the directive at
issue),
(b) Other papers. No supplements, replies, or sur-replies may be filed without leave of
the Court.

Rule 26. Notification of Presiding Judge. Upon receipt, the Clerk must notify the Presiding
Judge that a petition to modify, set aside, or compel compliance with a directive issued under 50
US.C. § 1881a(h)(1) has been filed. If the Presiding Judge is not reasonably available when the
Clerk receives a petition, the Clerk must notify each of the local Judges, in order of seniority on
the Court, and, if necessary, each of the other Judges, in order of seniority on the Court, until a
Judge who is reasonably available has received notification. The reasonably available Judge who
receives notification will be the acting Presiding Judge (“Presiding Judge”) for the case.

Rule 27. Assignment.
(a) Presiding Judge. As soon as possible after receiving notification from the Clerk that
a petition has been filed, and no later than 24 hours after the filing of the petition, the
Presiding Judge must assign the matter to a Judge in the petition review pool established
by 50 U.S.C. § 1803(e)(1). The Clerk must record the date and time of the assignment.
(b) Transmitting Petition. The Clerk must transmit the petition to the assigned Judge
as soon as possible but no later than 24 hours after being notified of the assignment by the
Presiding Judge.

-8-



1 submission filed by the government must include the full names of the attorneys
representing the United States and their mailing addresses, telephone numbers,
and facsimile numbers.

(i) Information Concerning Security Clearances in Adversarial Proceedings. A party

other than the government must:

(1) state in the initial submission whether the party (or the party’s responsible
officers or employees) and counsel for the party hold security clearances;

(2) describe the circumstances in which such clearances were granted; and
(3) identify the federal agencies granting the clearances and the classification
levels and compartments involved.

(i) Ex Parte Review. At the request of the government in an adversarial proceeding, the

Judge must review ex parte and in camera any submissions by the government, or

portions thereof, which may include classified information. Except as otherwise ordered,

if the government files ex parte a submission that contains classified information, the
government must file and serve on the non-governmental party an unclassified or
redacted version. The unclassified or redacted version, at a minimum, must clearly
articulate the government’s legal arguments.

(k) Instructions for Delivery to the Court. A party may obtain instructions for making

submissions permitted under the Act and these Rules by contacting the Clerk at (202)

357-6250.

Rule 8. Service.
(a) By a Party Other than the Government. A party other than the government must,
at or before the time of filing a submission permitted under the Act and these Rules, serve
acopy on the government. Instructions for effecting service must be obtained by
contacting the Security and Emergency Planning Staff, United States Department of
Justice, by telephone at (202) 514-2094.
(b) By the Government. At or before the time of filing a submission in an adversarial
proceeding, the government must, subject to Rule 7(j), serve a copy by hand delivery or
by overnight delivery on counsel for the other party, or, if the party is not represented by
counsel, on the party directly.
(c) Certificate of Service. A party must include a certificate of service specifying the
time and manner of service.

Rule 9. Time and Manner of Submission of Applications.
(a) Proposed Applications. Except when an application is being submitted following
an emergency authorization pursuant to 50 U.S.C. §§ 1805(e), 1824(e), 1843, 1881b(d),
or 1881c(d) (“emergency authorization”), or as otherwise permitted by the Court,
proposed applications must be submitted by the government no later than seven days
before the government seeks to have the matter entertained by the Court. Proposed
applications submitted following an emergency authorization must be submitted as soon
after such authorization as is reasonably practicable.
(b) Final Applications. Unless the Court permits otherwise, the final application,

|
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Honorable Patrick J. Leahy
July 29, 2013
Page 10

court ordered briefing on the matter. On July 18, 2013, the Court granted the motions of (1) a
coalition of news media organizations and (2) the First Amendment Coalition, the ACLU, the
Center for Democracy and Technology, the EFF, and Techfreedom for leave to file amicus curiae
briefs in this case. The matter is pending before the Court. All documents filed in this docket
are available at http://www.uscourts.gov/uscourts/courts/fisc/index.html under Case No. Misc.

} 13-03.

On June 19, 2013, Microsoft Corporation filed a motion in this Court for declaratory

judgment or other appropriate relief authorizing disclosure of aggregate data regarding any FISA
| orders it has received. The court ordered briefing on the matter. On July 18, 2013, the Court
granted the motions of (1) a coalition of news media organizations and (2) the First Amendment
Coalition, the ACLU, the Center for Democracy and Technology, the EFF, and Techfreedom for
leave to file amicus curiae briefs in this case. The matter is pending before the Court. All
documents filed in this docket are available at
| http://www.uscourts.gov/uscourts/courts/fisc/index.html under Case No. Mise. 13-04.

4. Please describe the process used by the Court to consider and resolve any instances
where the government notifies the Court of compliance concerns with any of the FISA
authorities.

Pursuant to 50 U.S.C. § 1803(h), the Court is empowered to ensure compliance with its
orders. Additionally, Rule 13(a) of the FISC Rules of Procedure requires the government to file
a written notice with the Court immediately upon discovering that any authority or approval
granted by the Court has been implemented (either by government officials or others operating
pursuant to Court order) in a manner that did not comply with the Court’s authorization or
approval or with applicable law. Rule 13(a) also requires the government to notify the Court in
writing of the facts and circumstances relevant to the non-compliance; any modifications the
government has made or proposes to make in how it will implement any authority or approval
granted by the Court; and how the government proposes to dispose of or treat any information
obtained as a result of the non-compliance.

When the government discovers instances of non-compliance, it files notices with the
Court as required by Rule 13(a). Because the rule requires the government to “immediately
inform the Judge” of a compliance incident, the government typically files a preliminary notice
that provides whatever facts are available at the time an incident is discovered. The legal staff
review these notices as they are received and call significant matters to the attention of the
appropriate judge. In instances in which the non-compliance has not been fully addressed by the
time the preliminary Rule 13(a) notice is filed, the Court may seek additional information
through telephone calls, meetings, or hearings. Typically, the government will file a final Rule
13(a) notice once the relevant facts are known and any unauthorized collection has been
destroyed. However, judges sometimes issue orders directing the government to take specific



(2) accepts papers for filing;

(3) keeps all records, pleadings, and files in a secure location, making those
materials available only to persons authorized to have access to them; and
(4) performs any other duties, consistent with the usual powers of a Clerk of
Court, as the Presiding Judge may authorize.

Rule 61. Office Hours. Although the Court is always open, the regular business hours of the
Clerk’s Office are 9:00 a.m. to 5:00 p.m. daily except Saturdays, Sundays, and legal holidays.
Except when the government submits an application following an emergency authorization, or
when the Court otherwise directs, any filing outside these hours will be recorded as received at
the start of the next business day.

Rule 62. Release of Court Records.
(a) Publication of Opinions. The Judge who authored an order, opinion, or other
decision may sua sponte or on motion by a party request that it be published. Upon such
request, the Presiding Judge, after consulting with other Judges of the Court, may direct
that an order, opinion or other decision be published. Before publication, the Court may,
as appropriate, direct the Executive Branch to review the order, opinion, or other decision
and redact it as necessary to ensure that properly classified information is appropriately
protected pursuant to Executive Order 13526 (or its successor).
(b) Other Records. Except when an order, opinion, or other decision is published or
provided to a party upon issuance, the Clerk may not release it, or other related record,
without a Court order. Such records must be released in conformance with the security
measures referenced in Rule 3.
(c) Provision of Court Records to Congress.
(1) By the Government. The government may provide copies of Court orders,
opinions, decisions, or other Court records, to Congress, pursuant to 50 U.S.C.
§§ 1871(a)(5), 1871(c), or 1881f(b)(1)(D), or any other statutory requirement,
without prior motion to and order by the Court. The government, however, must
contemporaneously notify the Court in writing whenever it provides copies of
Court records to Congress and must include in the notice a list of the documents
provided.
(2) By the Court. The Presiding Judge may provide copies of Court orders,
opinions, decisions, or other Court records to Congress. Such disclosures must be
made in conformance with the security measures referenced in Rule 3.

Rule 63. Practice Before Court. An attorney may appear on a matter with the permission of
the Judge before whom the matter is pending. An attorney who appears before the Court must be
a licensed attorney and a member, in good standing, of the bar of a United States district or
circuit court, except that an attorney who is employed by and represents the United States or any
of its agencies in a matter before the Court may appear before the Court regardless of federal bar
membership. All attorneys appearing before the Court must have the appropriate security
Clearance.

-15-



Honorable Patrick J. Leahy
July 29, 2013
Page 7

by the government in a significant percentage of cases.’ (The Court has recently initiated the
process of tracking more precisely how frequently this occurs.) The judge may determine, for
example, that he or she cannot make the necessary findings under the statute without the addition
of information to the application, or that he or she can approve only some of the authorities
sought through the application. The government then has the choice to alter its final application
or proposed orders in response to the judge’s concerns; request a hearing to address those
concerns; submit a final application without changes; or elect not to proceed at all with a final
application. If the government files a final application, the Court may, on its own, make changes
to the government’s proposed orders (or issue totally redrafted orders) to address the judge’s
concern about a given application. The judge may choose, for example, to make an authorization
of a shorter duration than what was requested by the government, or the judge may issue a
Supplemental Order imposing special reporting or minimization requirements on the
government’s implementation of an authorization.

3. Public FISA Court opinions and orders make clear that the Court has considered
the views of non-governmental parties in certain cases, including a provider
challenge to the Protect America Act of 2007. Describe instances where non-
governmental parties have appeared before the Court. Has the Court invited or
heard views from a nongovernmental party regarding applications or submissions
under Title I, Title V, or Title VII of FISA? If so, how did this come about, and
what was the process or mechanism that the Court used to enable such views to
be considered?

FISA does not provide a mechanism for the Court to invite the views of nongovernmental
parties. In fact, the Court’s proceedings are ex parte as required by the statute (see, e.g., 50
U.S.C. §§ 1805(a), 1824(a), 1842(d)(1) & 1861(c)(1)), and in keeping with the procedures
followed by other courts in applications for search warrants and wiretap orders. Nevertheless,
the statute and the FISC Rules of Procedure provide multiple opportunities for recipients of
Court orders or government directives to challenge those orders or directives, either directly or
through refusal to comply with orders or directives. Additionally, as detailed below, there have
been several instances — particularly in the past several months — in which nongovernmental
parties have appeared before the Court outside of the context of a challenge to an individual
Court order or government directive.

There has been one instance in which the Court heard arguments from a nongovernmental
party that sought to substantively contest a directive from the government. Specifically, in 2007,
the government issued directives to Yahoo!, Inc. (Yahoo) pursuant to Section 105B of the Protect
America Act of 2007 (PAA). Yahoo refused to comply with the directives, and the government

° This assessment does not include minor technical or typographical changes, which occur more
frequently.



1
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Honorable Patrick J. Leahy
July 29, 2013
Page 6

examining the legal sufficiency of applications before they are presented in final form to a judge.
Indeed, in the process of reviewing the government’s applications and submissions in order to
provide advice to the judge, the legal staff interact with the government on a daily basis. These
daily interactions typically consist of secure telephone conversations in which legal staff ask the
government questions about the legal and factual elements of applications or submissions. These
questions may originate with legal staff after an initial review of an application or submission, or
they may come from a judge.

At the direction of the Presiding Judge or the judge assigned to a matter, Court legal staff
sometimes meet with the government in connection with applications and submissions. The
Court typically requests such meetings when a proposed application or submission presents a
special legal or factual concern about which the Court would like additional information (e.g., a
novel use of technology or a request to use a new surveillance or search technique). The
frequency of such meetings varies depending on the Court’s assessment of its need for additional
information in matters before it and the most conducive means to obtain that information. Court
legal staff may meet with the government as often as 2-3 times a week, or as few as 1-2 times a
month, in connection with the various matters pending before the Court.

Pursuant to 50 U.S.C. § 1803(a)(2)(A) and Rule 17(a) of the FISC Rules of Procedure,
the Court also holds hearings in cases in which a judge assesses that he or she needs additional
information in order to rule on a matter. The frequency of hearings varies depending on the
nature and complexity of matters pending before the Court at a given time, and also, to some
extent, based on the individual preferences of different judges. Hearings are attended, at a
minimum, by the Department of Justice attorney who prepared the application and a fact witness
from the agency seeking the Court’s authorization.

The types of additional information sought from the government — through telephone
conversations, meetings, or hearings — include, but are not limited to, the following: additional
facts to justify the government’s belief that its application meets the legal requirements for the
type of authority it is seeking (e.g., in the case of electronic surveillance, that might include
additional information to justify the government’s belief that a target of surveillance is a foreign
power or an agent of a foreign power, as required by 50 U.S.C. § 1804(a)(3)(A), or that the target
is using or about to use a particular facility, as required by 50 U.S.C. § 1804(a)(3)(B)); additional
facts about how the government intends to implement statutorily required minimization
procedures (see, e.g., 50 U.S.C. §§ 1801(h); 1805(a)(3); 1824(a)(3); 1861(c)(1); 1881a(i)(3)(A);
and 1881c(c)(1)(c)); additional information about the government’s prior implementation of a
Court order, particularly if the government has previously failed to comply fully with a Court
order; or additional information about novel issues of technology or law (see Rule 11 of FISC
Rules of Procedure).

In a typical week, the Court seeks additional information or modifies the terms proposed



including all signatures, approvals, and certifications required by the Act, must be filed
no later than 10:00 a.m. Eastern Time on the day the government seeks to have the matter
entertained by the Court.

(c) Proposed Orders. Each proposed application and final application submitted to the
Court must include any pertinent proposed orders.

(d) Number of Copies. Notwithstanding Rule 7(b), unless the Court directs otherwise,
only one copy of a proposed application must be submitted and only the original final
application must be filed.

(e) Notice of Changes. No later than the time the final application is filed, the
government must identify any differences between the final application and the proposed
application.

Rule 10. Computation of Time. The following rules apply in computing a time period
specified by these Rules or by Court order:

(a) Day of the Event Excluded. Exclude the day of the event that triggers the period.
(b) Compute Time Using Calendar Days. Compute time using calendar days, not
business days.

(c) Include the Last Day. Include the last day of the period; but if the last day is a
Saturday, Sunday, or legal holiday, the period continues to run until the next day that is
not a Saturday, Sunday, or legal holiday.

Rule 11. Notice and Briefing of Novel Issues.

(a) Notice to the Court. If a submission by the government for Court action involves an
issue not previously presented to the Court — including, but not limited to, a novel issue
of technology or law — the government must inform the Court in writing of the nature
and significance of that issue.
(b) Submission Relating to New Techniques. Prior to requesting authorization to use a
new surveillance or search technique, the government must submit a memorandum to the
Court that:

(1) explains the technique;

(2) describes the circumstances of the likely implementation of the technique;

(3) discusses any legal issues apparently raised; and

(4) describes the proposed minimization procedures to be applied.
At the latest, the memorandum must be submitted as part of the first proposed application
or other submission that seeks to employ the new technique.
(c) Novel Implementation. When requesting authorization to use an existing surveillance
or search technique in a novel context, the government must identify and address any new
minimization or other issues in a written submission made, at the latest, as part of the
application or other filing seeking such authorization.
(d) Legal Memorandum. If an application or other request for action raises an issue of
law not previously considered by the Court, the government must file a memorandum of
law in support of its position on each new issue. At the latest, the memorandum must be

4.



Honorable Patrick J. Leahy
July 29, 2013
Page 9

the procedures and requirements for such challenges. Relatedly, 50 U.S.C. § 1881a(h)(5)(A)
provides that if an electronic communication service provider fails to comply with a directive
issued under Section 702, the Attorney General may file a petition with the Court for an order to
compel compliance, which would likely result in the service provider’s appearance before the
Court through its legal representatives. (Section 1881a(h)(5), as well as Rule 29 of the FISC
Rules of Procedure, provide further detail on the procedures and requirements for the
enforcement of Section 702 directives.) Finally, 50 U.S.C. § 1881a(h)(6) and Rule 31 of the
FISC Rules of Procedure allow for the government or an electronic communication service
provider to appeal an order of this Court under §§ 1881a(h)(4) or (5) to the FISCR. To date, no
electronic communication service provider has opted to challenge a directive issued pursuant to
Section 702, although, as noted above, Yahoo refused to comply with government directives
issued under the PAA, which resulted in the government invoking a provision under that statute
to compel compliance.

As noted above, there have been a number of other instances in which nongovernmental
parties have appeared before the Court outside of the context of a direct challenge to a court
order or a government directive, particularly recently. Those instances are as follows:

In August 2007, the American Civil Liberties Union (ACLU) filed a motion with the
Court for the release of certain records. The Court ordered and received briefing on the matter
from the ACLU and the government, and rendered a decision in December 2007. See In re
Motion for Release of Court Records, 526 F. Supp. 2d 484 (FISA Ct. 2007).

On May 23, 2013, the Electronic Frontier Foundation (EFF) filed a motion with this
Court for consent to disclosure of court records, or in the alternative, a determination of the effect
of the Court’s rules on access rights under the Freedom of Information Act. Following briefing
by EFF and the government, the Court issued an Opinion and Order on June 12, 2013. All
documents filed in this docket are available at
http:/Awww.uscourts.gov/uscourts/courts/fisc/index.html under Case No. Mise. 13-01.

On June 12, 2013, the ACLU, the American Civil Liberties Union of the Nation’s
Capital, and the Media Freedom and Information Access Clinic (Movants) filed a motion with
this Court for the release of Court records. The Court ordered and has received briefing on the
matter from the Movants and the government. On July 18, 2013, the Court granted the motions
of (1) sixteen members of the House of Representatives and (2) a coalition of news media
organizations for leave to file amicus curiae briefs in this case. The matter is pending before the
Court. All documents filed in this docket are available at
http://www.uscourts.gov/uscourts/courts/fisc/index.html under Case No. Misc. 13-02.

On June 18, 2013, Google, Inc. filed a motion with this Court for declaratory judgment of
the company’s first amendment right to publish aggregate information about FISA orders. The



Title VII. Supplemental Procedures for Proceedings Under 50 U.S.C. § 1861(f)

Rule 32. Scope. Together with the generally-applicable provisions of these Rules regarding
filing, service, and other matters, these supplemental procedures apply in proceedings under 50
U.S.C. § 1861(f).

Rule 33. Petition Challenging Production or Nondisclosure Order.

(a) Who May File. The recipient of a production order or nondisclosure order under 50

U.S.C. § 1861 (“petitioner”) may file a petition challenging the order pursuant to 50

U.S.C. § 1861(f). A petition may be filed by the petitioner’s counsel.

(b) Time to File Petition.
(1) Challenging a Production Order. The petitioner must file a petition
challenging a production order within 20 days after the order has been served.
(2) Challenging a Nondisclosure Order. A petitioner may not file a petition
challenging a nondisclosure order issued under 50 U.S.C. § 1861(d) earlier than
one year after the order was entered.
(3) Subsequent Petition Challenging a Nondisclosure Order. If a Judge
denies a petition to modify or set aside a nondisclosure order, the petitioner may
not file a subsequent petition challenging the same nondisclosure order earlier
than one year after the date of the denial.

Rule 34. Contents of Petition. A petition must:
(a) state clearly the relief being sought;
(b) state concisely the factual and legal grounds for modifying or setting aside the
challenged order;
(c) include a copy of the challenged order and state the date on which it was served on the
petitioner; and
(d) state whether a hearing is requested.

Rule 35. Length of Petition. Unless the Court directs otherwise, a petition may not exceed 20
pages in length, including any attachments (other than a copy of the challenged order).

Rule 36. Request to Stay Production.
(a) Petition Does Not Automatically Effect a Stay. A petition does not automatically
stay the underlying order. A production order will be stayed only if the petitioner
requests a stay and the Judge grants such relief.
(b) Stay May Be Requested Prior to Filing of a Petition. A petitioner may request the
Court to stay the production order before filing a petition challenging the order.

Rule 37. Notification of Presiding Judge. Upon receipt, the Clerk must notify the Presiding

Judge that a petition challenging a production or nondisclosure order has been filed. If the
Presiding Judge is not reasonably available when the Clerk receives the petition, the Clerk must

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i UNITED STATES FOREIGN
i INTELLIGENCE SURVEILLANCE COURT
Washington, D.C.

| Honorable Reggie B. Walton
Presiding Judge

July 29, 2013

Honorable Patrick J. Leahy

Chairman

Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Mr. Chairman:

I am writing in response to your letter of July 18, 2013, in which you posed several
questions about the operations of the Foreign Intelligence Surveillance Court (the Court). As you
requested, we are providing unclassified responses. We would note that, as a general matter, the
Court’s practices have evolved over time. Various developments in the last several years —
including statutory changes, changes in the size of the Court and its staff, the adoption of new
Rules of Procedure in 2010, and the relocation of the Court’s facilities from the Department of
Justice headquarters to a secure space in the federal courthouse in 2009 — have affected some of
these practices. The responses below reflect the current practices of the Court.

l. Describe the typical process that the Court follows when it considers the following: (1)
an application for an order for electronic surveillance under Title I of FISA; (2) an
| application for an order for access to business records under Title V of FISA; and (3)
submissions from the government under Section 702 of FISA. As to applications for
orders for access to business records under Title V of FISA, please describe whether the
process for the Court's consideration of such applications is different when considering
requests for bulk collection of phone call metadata records, as recently declassified by
the Director of National Intelligence.

Each week, one of the eleven district court judges who comprise the Court is on duty in
Washington. As discussed below, most of the Court’s work is handled by the duty judge with the
assistance of attorneys and clerk’s office personnel who staff the Court. Some of the Court’s
more complex or time-consuming matters are handled by judges outside of the duty-week
system, at the discretion of the Presiding Judge. In either case, matters before the Court are
thoroughly reviewed and analyzed by the Court.

Rule 9(a) of the United States Foreign Intelligence Surveillance Court Rules of Procedure

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!


TO THE BENCH, BAR AND PUBLIC:

The attached Rules of Procedure for the Foreign Intelligence Surveillance Court supersede both
the February 17, 2006 Rules of Procedure and the May 5, 2006 Procedures for Review of
Petitions Filed Pursuant to Section 501 (f) of the Foreign Intelligence Surveillance Act of 1978,
As Amended. These revised Rules of Procedure are effective immediately.

John D. Bates
Presiding Judge
Foreign Intelligence Surveillance Court

November 1, 2010



Honorable Patrick J. Leahy
July 29, 2013
Page 11

actions to address instances of non-compliance either before or after a final notice is

filed, and, less frequently, to cease a course of action that the Court considers non-compliant.
This process is followed for compliance issues in all matters, including matters handled under
Title V and Section 702.

I hope these responses are helpful to the Senate Judiciary Committee in its deliberations.

ie B. Walton
Presiding Judge

Identical letter sent to: Honorable Charles E. Grassley



Honorable Patrick J. Leahy
July 29, 2013
Page 8

filed a motion with this Court to compel compliance. The Court ordered and received briefing
from both parties, and rendered a decision in April 2008."°

As noted above, the FISC Rules of Procedure and the FISA statute provide opportunities
for the appearance of nongovernmental parties before the Court in matters pending pursuant to
Titles I, V and VII of the statute. For example, Rule 19(a) of the FISC Rules of Procedure
provides that if a person or entity served with a Court order fails to comply with that order, the
government may file a motion for an order to show cause why the recipient should not be held in
contempt and sanctioned accordingly. Thus, a nongovernmental party served with an order may
invite an opportunity to be heard by the Court through refusal to comply with an order.

With respect to applications filed under Title V of FISA, 50 U.S.C. § 1861(f)(2)(A)(i)
provides that a person receiving a production order may challenge the legality of that order by
filing a petition with the Court. The same section of the statute provides that the recipient of a
production order may challenge the non-disclosure order imposed in connection with a
production order by filing a petition to modify or set aside the nondisclosure order. Rules 33-36
of the FISC Rules of Procedure delineate the procedures and requirements for filing such
petitions, including the time limits on such challenges. To date, no recipient of a production
order has opted to invoke this section of the statute.

With respect to applications filed under Title VII of FISA, 50 U.S.C. § 1881a(h)(4)(A)
provides that an electronic communication service provider who receives a directive pursuant to
Section 702 may file a petition to modify or set aside the directive with the Court. Sections
1881a(h)(4)(A)-(G) of the statute, as well as Rule 28 of the FISC Rules of Procedure, delineate

'© Yahoo thereafter appealed the Court’s decision to the Foreign Intelligence Surveillance Court
of Review (FISCR). See Jn re Directives [redacted] Pursuant to Section 105b of the Foreign
Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008). This is not the only instance in
which a nongovernmental entity has appeared before the FISCR. In 2002, the FISCR accepted briefs
filed by the ACLU and the National Association of Criminal Defense Lawyers as amici curiae in In re
Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002).

While Yahoo’s identity as the provider that challenged these directives was previously under seal
pursuant to the FISCR’s decision in /n re Directives, 551 F.3d 1004, 1016-18, the FISCR issued an Order
on June 26, 2013, indicating that it does not object to the release of Yahoo’s identity, and ordering,
among other things, a new declassification review of the FISCR’s opinion in Jn re Directives. The
FISCR issued this order in response to a motion by Yahoo’s counsel, and after receiving briefing by
Yahoo and the government. Yahoo also recently filed a motion for publication of the Court’s decision
that was appealed to the FISCR, resulting in the published opinion in /n re Directives. The Court granted
the motion. Documents related to Yahoo’s recent motion to this Court are available at

http://www.uscourts.gov/uscourts/courts/fisc/index.htm! under Docket No. 105B(g) 07-01.



: (c) Expiration Dates. An expiration date in an order must be stated using Eastern Time
and must be computed from the date and time of the Court’s issuance of the order, or, if
applicable, of an emergency authorization.

(d) Electronic Signatures. The Judge may sign an order by any reliable, appropriately
secure electronic means, including facsimile.

Rule 19. Enforcement of Orders.
(a) Show Cause Motions. If a person or entity served with a Court order (the
“recipient”) fails to comply with that order, the government may file a motion for an
order to show cause why the recipient should not be held in contempt and sanctioned
accordingly. The motion must be presented to the Judge who entered the underlying
order.
(b) Proceedings.
(1) An order to show cause must:
(i) confirm that the underlying order was issued;
(ii) schedule further proceedings; and
(iii) afford the recipient an opportunity to show cause why the recipient
should not be held in contempt.
(2) A Judge must conduct any proceeding on a motion to show cause in camera.
The Clerk must maintain all records of the proceedings in conformance with 50
U.S.C. § 1803(c).
(3) If the recipient fails to show cause for noncompliance with the underlying
order, the Court may find the recipient in contempt and enter any order it deems
necessary and appropriate to compel compliance and to sanction the recipient for
noncompliance with the underlying order.
(4) If the recipient shows cause for noncompliance or if the Court concludes that
the order should not be enforced as issued, the Court may enter any order it deems
appropriate.

Title VI. Supplemental Procedures for Proceedings Under 50 U.S.C. § 1881a(h)

Rule 20. Scope. Together with the generally-applicable provisions of these Rules concerning
filing, service, and other matters, these supplemental procedures apply in proceedings under 50
U.S.C. § 1881a(h).

Rule 21. Petition to Modify or Set Aside a Directive. An electronic communication service
provider (“provider”), who receives a directive issued under 50 U.S.C. § 1881a(h)(1), may file a
petition to modify or set aside such directive under 50 U.S.C. § 1881a(h)(4). A petition may be
filed by the provider’s counsel.



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Rule 48. Circulation of En Banc Petitions and Responses. The Clerk must, after consulting
with the Presiding Judge and in a manner consistent with applicable security requirements,
promptly provide a copy of any timely-filed en banc petition permitted under 50 U.S.C.

§ 1803(a)(2), and any timely-filed response thereto, to each Judge.

Rule 49. Court-Initiated En Banc Proceedings. A Judge to whom a matter has been presented
may request that all Judges be polled with respect to whether the matter should be considered or
reconsidered en banc. On a Judge’s request, the Clerk must, after consulting with the Presiding
Judge and in a manner consistent with applicable security requirements, promptly provide notice
of the request, along with a copy of pertinent materials, to every Judge.

Rule 50. Polling.
(a) Deadline for Vote. The Presiding Judge must set a deadline for the Judges to submit
their vote to the Clerk on whether to grant a hearing or rehearing en banc. The deadline
must be communicated to all Judges at the time the petition or polling request is
circulated.
(b) Vote on Stay. In the case of rehearing en banc, the Presiding Judge may request that
all Judges also vote on whether and to what extent the challenged order or ruling should
be stayed or remain in effect if rehearing en banc is granted, pending a decision by the en
banc Court on the merits.

Rule 51. Stay Pending En Banc Review.
(a) Stay or Modifying Order. In accordance with 50 U.S.C. §§ 1803(a)(2)(B) and
1803(f), the Court en banc may enter a stay or modifying order while en banc
proceedings are pending.
(b) Statement of Position Regarding Continued Effect of Challenged Order. A
petition for rehearing en banc and any response to the petition each must include a
statement of the party’s position as to whether and to what extent the challenged order
should remain in effect if rehearing en banc is granted, pending a decision by the en banc
Court on the merits.

Rule 52. Supplemental Briefing. Upon ordering hearing or rehearing en banc, the Court may
require the submission of supplemental briefs.

Rule 53. Order Granting or Denying En Banc Review.
(a) Entry of Order. Ifa majority of the Judges votes within the time allotted for polling
that a matter be considered en banc, the Presiding Judge must direct the Clerk to enter an
order granting en banc review. If a majority of the Judges does not vote to grant hearing
or rehearing en banc within the time allotted for polling, the Presiding Judge must direct
the Clerk to enter an order denying en banc review.
(b) Other Issues. The Presiding Judge may set the time of an en banc hearing and the
time and scope of any supplemental hearing in the order granting en banc review. The

-13-



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Honorable Patrick J. Leahy
July 29, 2013
Page 4

greater amount of time reviewing and preparing a written analysis of such an application, in part
because the Court has always required detailed information about the government’s
implementation of this authority. The judge likewise typically spends a greater amount of time
than he or she normally spends on an individual application, carefully considering the extensive
information provided by the government and determining whether to seek more information or
hold a hearing before ruling on the application.

As described above, the majority of applications submitted to the Court are handled on a
seven-day cycle, by a judge sitting on a weekly duty schedule. Applications that are novel or
more complex are sometimes handled on a longer time-line, usually require additional briefing,
and are assigned by the Presiding Judge based on judges’ availability. Section 702 (i.e., 50
U.S.C. § 1881a) applications’ would typically fall into this category.

Where the Court’s process for handling Section 702 applications differs from the process
described above, it is largely based on the statutory requirements of that section, which was
enacted as part of the FISA Amendments Act of 2008 (FAA). Pursuant to 50 U.S.C. §§
1881a(g)(1)(A) & (g)(2)(D)(4), prior to the implementation of an authorization under Section
702, the Attorney General and the Director of National Intelligence must provide the Court with
a written certification containing certain statutorily required elements, and that certification must
include an effective date for the authorization that is at least 30 days after the submission of the
written certification to the Court.* Under 50 U.S.C. § 1881a(i)(B), the Court must review the
certification, as well as the targeting and minimization procedures adopted in accordance with 50
US.C. §§ 1881a(d) & (e), not later than 30 days after the date on which the certification and
procedures are submitted. The statutorily-imposed deadline for the Court’s review typically
coincides with the effective date identified in the final certification filed with the Court.

The government’s submission of a Section 702 application typically includes a cover
filing that highlights any special issues and identifies any changes that have been made relative to
the prior application. The government has typically filed proposed (read copy) Section 702
applications approximately one month before filing a final application. Proposed Section 702
applications are reviewed by multiple members of the Court’s legal staff. At the direction of the
Presiding Judge or a judge who has been assigned to handle the Section 702 application, the

7 “Section 702 application” is used here to refer collectively to a Section 702 certification and
supporting affidavit, as well as to the statutorily-required targeting and minimization procedures.

* If the acquisition has already begun (e.g., pursuant to a determination of exigent circumstances
under 50 U.S.C. § 1881a(c)(2)) or the effective date is less than 30 days after the submission of the
written certification to the Court (e.g., because of an amendment to a certification while judicial review is
pending, pursuant to 50 U.S.C. § 1881a(i)(1)(C)), 50 U.S.C. § 1881a(g)(2)(D)(ii) requires the
certification to include the date the acquisition began or the effective date of the authorization.



Title IX. Appeals

54. How Taken 2.0... 0. ccc e cee cece cere enn ence eect eee e ener eee enes
55. When Taken .....

56. Stay Pending Appeal .....

57. Motion to Transmit the Record . :

58. Transmitting the Record ......... 0... cece cece cee cence eee eee n eee eee
59. Oral Notification to the Court of Review ........ 0... cece eee eee eee teen eens 14
Title X. Administrative Provisions
60. Duties of the Clerk ..... 0... ccc cece eee e ete eect eee n ene eee e een e ene es 14
61. Office Hours ........... . 15
62. Release of Court Records . w 1S
63. Practice Before Court ...... 00.0.0 cece eee cece teen enn nen ence erences 15

-iii-



Title IV. Matters Presented to the Court

Rule 6. Means of Requesting Relief from the Court.
(a) Application. The government may, in accordance with 50 U.S.C. §§ 1804, 1823,
1842, 1861, 1881b(b), 1881c(b), or 1881d(a), file an application for a Court order
(“application”).
(b) Certification. The government may, in accordance with 50 U.S.C. § 1881a(g), file a
certification concerning the targeting of non-United States persons reasonably believed to
be located outside the United States (“certification”).
(c) Petition. A party may, in accordance with 50 U.S.C. §§ 1861(f) and 1881a(h) and
the Supplemental Procedures in Titles VI and VII of these Rules, file a petition for review
of a production or nondisclosure order issued under 50 U.S.C. § 1861 or for review or
enforcement of a directive issued under 50 U.S.C. § 1881a (“petition”).
(d) Motion. A party seeking relief, other than pursuant to an application, certification, or
petition permitted under the Act and these Rules, must do so by motion (“motion”).

Rule 7, Filing Applications, Certifications, Petitions, Motions, or Other Papers
(“Submissions”).
(a) Filing. A submission is filed by delivering it to the Clerk or as otherwise directed by
the Clerk in accordance with Rule 7(k).
(b) Original and One Copy. Except as otherwise provided, a signed original and one
copy must be filed with the Clerk.
(c) Form. Unless otherwise ordered, all submissions must be:
(1) on 8%-by-11-inch opaque white paper; and
(2) typed (double-spaced) or reproduced in a manner that produces a clear black
image.
(d) Electronic Filing. The Clerk, when authorized by the Court, may accept and file
submissions by any reliable, and appropriately secure, electronic means.
(©) Facsimile or Scanned Signature. The Clerk may accept for filing a submission
bearing a facsimile or scanned signature in lieu of the original signature. Upon
acceptance, a submission bearing a facsimile or scanned signature is the original Court
record.
(f) Citations. Each submission must contain citations to pertinent provisions of the Act.
(g) Contents. Each application and certification filed by the government must be
approved and certified in accordance with the Act, and must contain the statements and
other information required by the Act.
(b) Contact Information in Adversarial Proceedings.
(1) Filing by a Party Other Than the Government. A party other than the
government must include in the initial submission the party’s full name, address,
and telephone number, or, if the party is represented by counsel, the full name of
the party and the party’s counsel, as well as counsel’s address, telephone number,
facsimile number, and bar membership information.
(2) Filing by the Government. In an adversarial proceeding, the initial

2-



Honorable Patrick J. Leahy
July 29, 2013
Page 3

of action to take. These courses of action might include indicating to Court staff that he or she is
prepared to approve the application without a hearing; indicating an inclination to impose
conditions on the approval of the application; determining that additional information is needed
about the application; or determining that a hearing would be appropriate before deciding
whether to grant the application. A staff attorney will then relay the judge’s inclination to the
government, and the government will typically proceed by providing additional information, or
by submitting a final application (sometimes with amendments, at the government’s election) for
the Court’s ruling pursuant to Rule 9(b) of the FISC Rules of Procedure. In conjunction with its
submission of a final application, the government has an opportunity to request a hearing, even if
the judge did not otherwise intend to require one. The government might request a hearing, for
example, to challenge conditions that the judge has indicated he or she would impose on the
approval of an application. If the judge schedules a hearing, the judge decides whether to
approve the application thereafter. Otherwise, the judge makes a determination based on the
final written application submitted by the government. In approving an application, a judge will
sometimes issue a Supplemental Order in addition to signing the government’s proposed orders.
Often, a Supplemental Order imposes some form of reporting requirement on the government.

If after receiving a final application, the judge is inclined to deny it, the Court will prepare
a statement of reason(s) pursuant to 50 U.S.C. § 1803(a)(1). In some cases, the government may
decide not to submit a final application, or to withdraw one that has been submitted, after
learning that the judge does not intend to approve it. The annual statistics provided to Congress
by the Attorney General pursuant to 50 U.S.C. §§ 1807 and 1862(b) — frequently cited to in press
reports as a suggestion that the Court’s approval rate of applications is over 99% — reflect only
the number of final applications submitted to and acted on by the Court. These statistics do not
reflect the fact that many applications are altered prior to final submission or even withheld from
final submission entirely, often after an indication that a judge would not approve them.°

Most applications under Title V of FISA are handled pursuant to the process described
above. However, applications under Title V of FISA for bulk collection of phone call metadata
records are normally handled by the weekly duty judge using a process that is similar to the one
described above, albeit more exacting. The government typically submits a proposed application
of this type more than one week in advance. The attorney who reviews the application spends a

application has the benefit of the prior thoughts of the judge(s) and staff, and a written record of any
problems with the case.

® Notably, the approval rate for Title III wiretap applications (see note 2 above) is higher than
the approval rate for FISA applications, even using the Attorney General’s FISA statistics as the baseline
for comparison, as recent statistics show that from 2008 through 2012, only five of 13,593 Title III
wiretap applications were requested but not authorized. See Administrative Office of the United States
Courts, Wiretap Report 2012, Table 7 (available at
http://www.uscourts.gov/uscourts/statistics/wiretapreports/20 1 2/Table7.pdf).

i
j


notify each of the local Judges, in order of seniority on the Court, and, if necessary, each of the
other Judges, in order of seniority on the Court, until a Judge who is reasonably available has
received notification. The reasonably available Judge who receives notification will be the acting
Presiding Judge (“Presiding Judge”) for the case.

Rule 38. Assignment.
(a) Presiding Judge. Immediately after receiving notification from the Clerk that a
petition has been filed, the Presiding Judge must assign the matter to a Judge in the
petition pool established by 50 U.S.C. § 1803(e)(1). The Clerk must record the date and
time of the assignment.
(b) Transmitting Petition. The Clerk must transmit the petition to the assigned Judge
as soon as possible but no later than 24 hours after being notified of the assignment by the
Presiding Judge.

Rule 39. Initial Review.
(a) When. The Judge must review the petition within 72 hours after being assigned the
petition.
(b) Frivolous Petition. If the Judge determines that the petition is frivolous, the Judge
must:
(1) immediately deny the petition and affirm the challenged order;
(2) promptly provide a written statement of the reasons for the denial; and
(3) provide a written ruling, together with the statement of reasons, to the Clerk,
who must transmit the ruling and statement of reasons to the petitioner and the
government.
(c) Non-Frivolous Petition.
(1) Scheduling. If the Judge determines that the petition is not frivolous, the
Judge must promptly issue an order that sets a schedule for its consideration. The
Clerk must transmit the order to the petitioner and the government.
(2) Manner of Proceeding. The judge may hold a hearing or conduct the
proceedings solely on the papers filed by the petitioner and the government.

Rule 40. Response to Petition; Other Papers.
(a) Government’s Response. Unless the Judge orders otherwise, the government must
file a response within 20 days after the issuance of the initial scheduling order pursuant to
Rule 39(c). The response must not exceed 20 pages in length, including any attachments
(other than a copy of the challenged order).
(b) Other Papers. No supplements, replies, or sur-replies may be filed without leave of
the Court.

Rule 41. Rulings on Non-frivolous Petitions.
(a) Written Statement of Reasons. If the Judge determines that the petition is not
frivolous, the Judge must promptly provide a written statement of the reasons for
modifying, setting aside, or affirming the production or nondisclosure order.

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Honorable Patrick J. Leahy
July 29, 2013
Page 2

(FISC Rules of Procedure)! requires that except in certain circumstances (i.e., a submission
pursuant to an emergency authorization under the statute or as otherwise permitted by the Court),
a proposed application must be submitted by the government no later than seven days before the
government seeks to have the matter entertained? Upon the Court’s receipt of a proposed
application for an order under FISA, a member of the Court’s legal staff reviews the application
and evaluates whether it meets the legal requirements under the statute. As part of this
evaluation, a Court attorney will often have one or more telephone conversations with the
government} to seek additional information and/or raise concerns about the application. A Court
attorney then prepares a written analysis of the application for the duty judge, which includes an
identification of any weaknesses, flaws, or other concerns. For example, the attorney may
recommend that the judge consider requiring the addition of information to the application;
imposing special reporting requirements;* or shortening the requested duration of an
authorization.

The judge then reviews the proposed application, as well as the attorney’s written
analysis.’ The judge typically makes a preliminary determination at that time about what course

' A copy of the FISC Rules of Procedure is appended hereto as Attachment A. The rules are also
available at http://www.uscourts.gov/uscourts/rules/FISC2010.pdf.

2 A proposed application is also sometimes referred to as a “read copy” and has been referred to
in this manner in at least one recent congressional hearing. A proposed application or “read copy” is a
near-final version of the government’s application, which does not include the signatures of executive
branch officials required by statutory provisions such as 50 U.S.C. §§ 1804(a)(6) and 1823(a)(6). As
described below, in most circumstances, the government will subsequently file a final copy of an
application pursuant to Rule 9(b) of the FISC Rules of Procedure. Both the proposed and final
applications include proposed orders.

The process of using proposed applications and final applications is altogether similar to the
process employed by other federal courts in considering applications for wiretap orders under Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, as amended (“Title III”), which is codified at
18 U.S.C. §§ 2510-2522.

3 In discussing Court interactions with “the government” throughout this document, | am
referring to interactions with attorneys in the Office of Intelligence of the National Security Division of
the United States Department of Justice.

‘ Pursuant to 50 U.S.C. §§ 1805(d)(3) and 1824(d)(3), the Court is authorized to assess
compliance with the statutorily-required minimization procedures by reviewing the circumstances under
which information concerning United States persons was acquired, retained, or disseminated.

> For each application, the Court retains the attorney’s written analysis and the notes made by the
judge, so that if the government later seeks to renew the authorization, the judge who considers the next


order may also address whether and to what extent the challenged order or ruling will be
stayed or remain in effect pending a decision by the en banc Court on the merits.

Title IX. Appeals

Rule 54. How Taken. An appeal to the Court of Review, as permitted by law, may be taken by
filing a petition for review with the Clerk.

Rule 55. When Taken.
(a) Generally. Except as the Act provides otherwise, a party must file a petition for
review no later than 30 days after entry of the decision or order as to which review is
sought.
(b) Effect of En Banc Proceedings. Following the timely submission of a petition for
rehearing en banc permitted under 50 U.S.C. § 1803(a)(2) or the grant of rehearing en
banc on the Court’s own initiative, the time otherwise allowed for taking an appeal runs
from the date on which such petition is denied or dismissed or, if en banc review is
granted, from the date of the decision of the en banc Court on the merits.

Rule 56. Stay Pending Appeal. In accordance with 50 U.S.C. § 1803(f), the Court may enter a
stay of an order or an order modifying an order while an appeal is pending.

Rule 57. Motion to Transmit the Record. Together with the petition for review, the party
filing the appeal must also file a motion to transmit the record to the Court of Review.

Rule 58. Transmitting the Record. The Clerk must arrange to transmit the record under seal to
the Court of Review as expeditiously as possible, no later than 30 days after an appeal has been
filed. The Clerk must include a copy of the Court’s statement of reasons for the decision or order
appealed from as part of the record on appeal.

Rule 59. Oral Notification to the Court of Review. The Clerk must orally notify the Presiding
Judge of the Court of Review promptly upon the filing of a petition for review.

Title X. Administrative Provisions

Rule 60. Duties of the Clerk.
(a) General Duties. The Clerk supports the work of the Court consistent with the
directives of the Presiding Judge. The Presiding Judge may authorize the Clerk to
delegate duties to staff in the Clerk’s office or other designated individuals.
(b) Maintenance of Court Records. The Clerk:
(1) maintains the Court’s docket and records — including records and recordings
of proceedings before the Court — and the seal of the Court;

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UNITED STATES FOREIGN
INTELLIGENCE SURVEILLANCE COURT
Washington, D.C.

RULES OF PROCEDURE
Effective November 1, 2010

Rule Page

Title I. Scope of Rules; Amendment

1, Scope of Rules
2. Amendment ........ 00... c cece cece eee e eee n ene teen eben en ene eeee
Title II. National Security Information
3. National Security Information ............0 0. ccc cece cece eee een eee eee eens 1
Title III. Structure and Powers of the Court
4, Structure... ccc eee teen cere enn n eee n ete n tenet eee 1
5. Authority of the Judges .... 0... ccc cece cece tenn e eee teen teen e eee 1
Title IV. Matters Presented to the Court

6. Means of Requesting Relief from the Court 00.06... cece eee eect een eee eee ene eee 2
7. Filing Applications, Certifications, Petitions,

Motions, or Other Papers (“Submissions”) ..........0 0000 c cece cece cence eee teens 2
8. Service oo... cee cece ccc e eee eee eens 3
9. Time and Manner of Submission of Applications . . 3
10. Computation of Time .......... 0... c eee eee 14
11. Notice and Briefing of Novel Issues . 14
12, Submission of Targeting and Minimization Procedures .............. 5
13. Correction of Misstatement or Omission; Disclosure of Non-Compliance . a)
14. Motions to Amend Court Orders . 5
15. Sequestration ..............005 a)
16. Returns 20.0... cece cece ect e ene cere eee ee ene e beeen ne enees 6

Title V. Hearings, Orders, and Enforcement

17, Hearings 0.0... ccc cece renee eee ene e nee eee eee e tenner eee 6
18. Court Orders ...... +6
19. Enforcement of Orders . 27



|

Title I. Scope of Rules; Amendment

Rule 1. Scope of Rules. These rules, which are promulgated pursuant to 50 U.S.C. § 1803(g),
govern all proceedings in the Foreign Intelligence Surveillance Court (“the Court”). Issues not
addressed in these rules or the Foreign Intelligence Surveillance Act, as amended (“the Act”),
may be resolved under the Federal Rules of Criminal Procedure or the Federal Rules of Civil
Procedure.

Rule 2. Amendment. Any amendment to these rules must be promulgated in accordance with
28 U.S.C. § 2071.

Title II. National Security Information

Rule 3. National Security Information. In all matters, the Court and its staff shall comply with
the security measures established pursuant to 50 U.S.C. §§ 1803(c), 1822(e), 1861(f)(4), and
1881a(k)(1), as well as Executive Order 13526, “Classified National Security Information” (or its
successor). Each member of the Court’s staff must possess security clearances at a level
commensurate to the individual’s responsibilities.

Title IMI. Structure and Powers of the Court

Rule 4. Structure.
(a) Composition. In accordance with 50 U.S.C. § 1803(a), the Court consists of United
States District Court Judges appointed by the Chief Justice of the United States.
(b) Presiding Judge. The Chief Justice designates the “Presiding Judge.”

Rule 5. Authority of the Judges.
(a) Scope of Authority. Each Judge may exercise the authority vested by the Act and
such other authority as is consistent with Article III of the Constitution and other statutes
and laws of the United States, to the extent not inconsistent with the Act.
(b) Referring Matters to Other Judges. Except for matters involving a denial of an
application for an order, a Judge may refer any matter to another Judge of the Court with
that Judge’s consent. If a Judge directs the government to supplement an application, the
Judge may direct the government to present the renewal of that application to the same
Judge. If a matter is presented to a Judge who is unavailable or whose tenure on the
Court expires while the matter is pending, the Presiding Judge may re-assign the matter.
(c) Supplementation. The Judge before whom a matter is pending may order a party to
furnish any information that the Judge deems necessary.

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