That definition in turn requires that the minimization procedures must be reasonably designed, in light of the purpose and technique of the particular surveillance, in order to minimize any acquisition of non-publicly available information about unconsenting U.S. persons, and to minimize the retention and prohibit the dissemination of any such info.rmation that might still be acquired, consistent with the need to obtain, produce, and disseminate foreign-intelligence information, or to retain and disseminate evidence of a crime. 50 U.S.C. §§ 1801(h)(l), (3), 1821(4)(A), (C), 1881a(e)(l). CLASSIFIED MATERIAL REDACTED D. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED 1.

50 U.S.C. §§ 1801(b)(2) (electronic surveillance), 1821(1) (physical search). FISA specifies that 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 39 The provisions of FISA relating to electronic surveillance begin with FISA Section 101, 50 U.S.C. § 1801, and end with FISA section 112, 50 U.S.C. § 1812. For ease of reference herein, when referring to a “FISA Section”, we will simply refer to the citation (1801) versus the Section number (101).

In this context, minimization requirements should be at least as stringent as they are in the context of FISA surveillance of facilities used exclusively by foreign powers. See 50 U.S.C. § 1801(h)(4). b. The FAA lacks other basic protections.

In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance. 50 U.S.C. § 1801 - Definitions As used in this subchapter: * * * * (f) “Electronic surveillance” means— * * * * (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the Case3:08-cv-04373-JSW Document83 Filed07/02/12 Page28 of 29 Case No. 08-CV-4373-JSW A-2 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18; * * * * (k) “Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance. * * * * (n) “Contents”, w

This argument boils down an attempt to impose a back-door warrant requirement on § 1881a, and should be rejected. Prior judicial review based on a showing of individualized suspicion and a particularized description of the planned surveillance is simply an approximation of a warrant, which must be based on “probable cause” and must “particularly describ[e] the place to be searched and the per- 39 Plaintiffs further complain that § 1881a does not require certain minimization procedures de- scribed in the last prong of FISA’s definition of minimization procedures, 50 U.S.C. § 1801(h)(4), which generally prohibit the retention of any communications of U.S. persons. See Pls.’

See 50 U.S.C. § 1806(a). But FISA’s definition of minimization procedures allows for the retention and dissemination of information that is evidence of a crime which has been, is being, or about to be committed and that is to be retained and disseminated for law enforcement purposes, see 50 U.S.C. § 1801(h)(3), and whether a particular communication is in fact privileged may depend on an after-the-fact assessment by a court. Thus, a person subject to surveillance will not know: (i) whether he is being surveilled; (ii) whether he is being surveilled under FISA; and (iii) if he is under FISA surveillance, whether minimization procedures will actually result in the suppression of privileged communications beforehand.

The purpose of these minimization procedures is to (a) ensure that surveillance is reasonably designed to minimize the acquisition and retention of private information regarding people who are being wiretapped; (b) prevent dissemination of non-foreign intelligence information; and (c) prevent the disclosure, use, or retention of information for longer than seventy-two hours unless a longer period is approved by Court order. 50 U.S.C. § 1801(h). The FISC must find that the government’s proposed minimization procedures comply with sections 1805(a)(3) and 1824(a)(3).

See, e.g., U.S. v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992) (holding that “when the contents of a wire communication are captured or redirected in any way, an interception occurs at that time.”).22 This argument also defies common sense: it would be impossible for the NSA to scan (or “sift”) 21 See 18 U.S.C. § 2511 and 50 U.S.C § 1801(f) (definitions of “intercept” and “electronic surveillance,” respectively). 22 See also In re State Police Litigation, 888 F. Supp. 1235, 1264 (D. Conn. 1995) (holding that “it is the act of diverting, and not the act of listening, that constitutes an ‘interception.

(A “foreign power” includes “a group engaged in international terrorism or activities in preparation therefor.” 50 U.S.C. § 1801(a)(4). Moreover, a “written request or directive” to a carrier setting forth nothing more than that the surveillance was “(i) authorized by the -46- No.

(A “foreign power” includes “a group engaged in international terrorism or activities in preparation therefor.” 50 U.S.C. § 1801(a)(4).).