CLASSIFIED MATERIAL REDACTED C. THE APPLICABLE MINIMIZATION PROCEDURES MET THE STATUTORY REQUIREMENTS Section 702 requires the adoption of minimization procedures that comply with FISA's definition of such procedures. See 50 U.S.C. § 1881a(e)(l). 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.

The information and records requested in this motion will likely contain information favorable to Mr. Muhtorov’s motion to suppress. For example, the government’s applications to the FISC and the FISC’s orders that led to the surveillance of Mr. Muhtorov will provide evidence that the FAA surveillance scheme approved by 57 Case 1:12-cr-00033-JLK Document 520 Filed 01/29/14 USDC Colorado Page 57 of 69 the FISC and used to surveil Mr. Muhtorov violated the warrant clause and the requirements of section 1881a. Information about what communications were surveilled16 and how and why they were obtained will indicate whether the government violated the targeting and minimization restrictions approved by the FISC, whether the search was unreasonable under the Fourth Amendment, and whether Mr. Muhtorov’s communications were intercepted for a law enforcement purpose rather than a foreign intelligence one.

Similarly, one document the FBI released in part, an An ual Report required by Subsec- tion 702(l)(3) for September 1, 2008, through August 31, 2009 (FAA 11-13), includes redactions under the heading “Targets Later Determined to be Located in the U.S,” see FAA 12, which are acquisitions that by definition lie outside the scope of FAA authority. See 50 U.S.C. § 1881a(b). This revelation is particularly troubling as the document further states, in an unredacted passage, that “the FBI did not develop any procedures to assess … the ex ent to which [ ] acquisitions … acquire communications of U.S. persons.”

As explained above, yet nowhere acknowledged by the Plaintiffs, the NSA destroyed upstream communications information collected under Section 702—without any reasonable basis to believe that Section 702 was at issue in these lawsuits—for the undisputed purpose of complying with the express retention limits set forth in minimization procedures mandated by the statute, and the FISC, in order to protect the privacy interests of U.S. persons and meet Fourth Amendment standards. See supra Section I; 50 U.S.C. § 1881a(c)(1)(A), (e)(2), (i)(2)(C), (3); Classified Shea Decl. ¶¶ 37-38.

Disclose whether the FAA surveillance relied upon against Hasbajrami “intentionally acquire[d] any communication as to which the sender and all intended recipients [were] known at the time of the acquisition to be located in the United States” (50 U.S.C. § 1881a[b][4]).  Disclose whether the Government has any reason to believe that the FAA surveillance relied upon against Hasbajrami were not “conducted in a manner consistent with the fourth amendment to the Constitution of the United States” (50 U.S.C. § 1881a[b][5]).  Provide copies of all FISA warrants and FISA warrant applications not previously disclosed to the defense in this case.

A judge on the FISC must conduct an initial review within five days and render a ruling within thirty days. 50 U.S.C. §1881a(h)(4)(D)-(E). Moreover, the FISC, like any other federal court, has “inherent authority . . . to determine or enforce compliance with” its “order[s]” and “rule[s],” and with “procedure[s] approved by [the] court.”

Collection under this section is subject to numerous statutory requirements and extensive oversight, including inter alia a finding by the FISC that the procedures governing targeting decisions and the use and dissemination of the information that is obtained are “consistent with the fourth amendment to the Constitution of the United States” and the statute, as well as statutory limitations that are directed at preventing the intentional targeting of U.S. persons or persons located within the United States. 50 U.S.C. § 1881a(b). Under FISA, the government must notify any “aggrieved person” of its intent to “enter into evidence or otherwise use or disclose,” in a proceeding against such person, “any information obtained or derived from [FISA authorized] electronic surveillance of that aggrieved person.”

If Intervenors are not permitted to bring suit here, the only circumstances in which individuals with confidential prescription records in the PDMP could challenge the DEA’s warrantless access to those records would be if the DEA issues and serves a subpoena for those records, indicts the person to whom the records pertain, prosecutes them, and either discloses the records pursuant to the government’s Brady obligations or introduces the evidence at trial.15 Whether denial of standing will insulate a surveillance program from judicial review is an important factor in the standing calculus: In Clapper, the Supreme Court recently supported its ruling that the plaintiffs lacked standing to challenge surveillance under § 702 of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1881a, by explaining that the holding “by no means insulates [the law] from judicial review.” 133 S. Ct. at 1154.

at 21-22. The FISC determines whether the Executive is complying with the statutory requirements and the Fourth Amendment, see 50 U.S.C. § 1881a(i), and issues orders either approving of certifications (so directives may be issued to electronic communication service providers who must comply or challenge them, see id. § 1881a(h)), or disapproving the certifications so the Government is barred from conducting collections under the certifications if it does not remedy the deficiency.

And even as to that category, section 702 requires only that foreign intelligence be a significant purpose of the investigation, not the sole or even primary purpose. 50 U.S.C. § 1881a(g)(2)(A)(v). This is far beyond the limited category of important government interests that could justify dispensing with the warrant requirement of the Fourth Amendment.