Case: In Re Electronic Surveillance and Physical Search of International Terrorist Groups, Their Agents, and Related Targets [Raw Take Order Docket 02-431]

02-00431 | Foreign Intelligence Surveillance Court

Filed Date: 2002

Clearinghouse coding complete

Case Summary

This is the Foreign Intelligence Surveillance Act (FISA) case that led to what NSA personnel have labeled the "Raw Take" order, issued by the Foreign Intelligence Surveillance Court (FISC) on July 22, 2002. Prior to this order, with only narrow exceptions, NSA was authorized to share information gathered under FISA only after "minimization," which included deleting non-foreign-intelligence information and the names of most U.S. persons. This order authorized sharing of raw--unminimized--infor…

This is the Foreign Intelligence Surveillance Act (FISA) case that led to what NSA personnel have labeled the "Raw Take" order, issued by the Foreign Intelligence Surveillance Court (FISC) on July 22, 2002. Prior to this order, with only narrow exceptions, NSA was authorized to share information gathered under FISA only after "minimization," which included deleting non-foreign-intelligence information and the names of most U.S. persons. This order authorized sharing of raw--unminimized--information with FBI and CIA analysts.

According to a FISC order dated July 22, 2002, the FISC had, since January 1, 2001, approved "minimization procedures" governing the sharing of intelligence. But in this matter, the Department of Justice sought to expand the ability of intelligence agencies to share among themselves "raw data" (that is, intelligence without redactions or other "minimizations"). In particular, the government sought court approval for the FBI to share raw data with the CIA and the NSA, where the raw data related to international terrorism. This sought authority to share included communications by or about U.S. persons collected by the FBI in electronic surveillance and physical searches conducted under FISA (and authorized by the FISA Court). The government proposed that the CIA and NSA be allowed to "review, translate, analyze, minimize, use, retain and disseminate" the information "pursuant to supplementary minimization procedures" signed by the Attorney General and filed with the FISC.

The new minimization procedures were titled:

  • CIA Minimization Procedures for Information from FISA Electronic Surveillance and Physical Search Conducted by the FBI"
  • "Standard Minimization Procedures for Electronic Surveillance Conducted by the National Security Agency

These minimization procedures are summarized in an August 20, 2002 memorandum from the Office of the Attorney General.

The FISC made findings that CIA and NSA were appropriate agencies, under FISA, to conduct electronic surveillance and physical searches, and that FISA allowed the sharing sought, because the "authorized intelligence agency" (that is, the FBI) was "unable to process and to minimize all the collected raw information because of linguistic or technical limitations." It approved the two supplementary minimization procedures under FISA sections 1801(h) and 1821(4).

The FISC ordered the DOJ to report every six months on implementation of the new approval, and stated that its order would be reconsidered in May 2004, en banc.

The order was signed by all the members of the FISC.

Earliest knowledge of this case came not from the case documents, but references to it in documents leaked by Edward Snowden and analyzed by the New York Times (Charlie Savage & Laura Poitras, How a Court Secretly Evolved, Extending U.S. Spies' Reach, N.Y. Times, March 11, 2014). (An unclassified timeline document referring to the "2002 FISC 'Raw Take' Share Motion," posted as part of that article, is included in the Clearinghouse record.) On the basis of the Times's report, the Electronic Frontier Foundation (EFF) filed a FOIA request for the order; it was released on March 2, 2015.

Summary Authors

Margo Schlanger (3/3/2015)

Joshua Arocho (7/6/2015)

People


Judge(s)

Baker, Harold Albert (Illinois)

Brotman, Stanley Seymour (New Jersey)

Carr, James G. (Ohio)

Conway, John Edwards (New Mexico)

Davis, Michael James (Minnesota)

Gorton, Nathaniel M. (Massachusetts)

Hilton, Claude M. (Virginia)

Kollar-Kotelly, Colleen (District of Columbia)

McLaughlin, Mary A. (Pennsylvania)

Robertson, James (District of Columbia)

Judge(s)

Baker, Harold Albert (Illinois)

Brotman, Stanley Seymour (New Jersey)

Carr, James G. (Ohio)

Conway, John Edwards (New Mexico)

Davis, Michael James (Minnesota)

Gorton, Nathaniel M. (Massachusetts)

Hilton, Claude M. (Virginia)

Kollar-Kotelly, Colleen (District of Columbia)

McLaughlin, Mary A. (Pennsylvania)

Robertson, James (District of Columbia)

Stafford, William Henry Jr. (Florida)

Attorneys(s) for Plaintiff

Ashcroft, John (District of Columbia)

Comey, James Brien (Virginia)

Holder, Eric H. Jr. (District of Columbia)

Reno, Janet (District of Columbia)

Documents in the Clearinghouse

Document

[Redacted]

Standard Minimization Procedures for Electronic Surveillance Conducted by the National Security Agency (NSA) (Exhibit B to 2 May 2002 Motion)

July 1, 1997

July 1, 1997

Pleading / Motion / Brief

02-00431

Motion for Amended Orders Permitting Modified Minimization Procedures

In Re Electronic Surveillance and Physical Search of International Terrorist Groups, Their Agents, and Related Targets

May 10, 2002

May 10, 2002

Pleading / Motion / Brief

02-00431

CIA Minimization Procedures for Information from FISA Electronic Surveillance and Physical Search Conducted by the FBI (Exhibit A to May 10 2002 Motion)

In Re Electronic Surveillance and Physical Search of International Terrorist Groups, Their Agents, and Related Targets

May 10, 2002

May 10, 2002

Pleading / Motion / Brief

02-00431

Order

In Re Electronic Surveillance and Physical Search of International Terrorist Groups, Their Agents, and Related Targets

May 10, 2002

May 10, 2002

Order/Opinion

Order

July 22, 2002

July 22, 2002

Order/Opinion

02-00431

Procedures for the Dissemination by NSA to Foreign Governments of Information From FISA Electronic Surveillance or Physical Search Conducted by the FBI

Aug. 20, 2002

Aug. 20, 2002

Statute/Ordinance/Regulation

[Redacted]

Motion and Order for ("Permanent") Continuation of Amended Order (of 22 July 2002)

May 14, 2004

May 14, 2004

Order/Opinion

[Redacted]

CIA Minimization Procedures for Information from FISA Electronic Surveillance Conducted by NSA

In Re Electronic Surveillance and Physical Search of International Terrorist Groups, Their Agents, and Related Targets

Dec. 13, 2006

Dec. 13, 2006

Pleading / Motion / Brief

[Redacted]

NCTC Standard Minimization Procedures for Information Acquired by the FBI Pursuant to Title I, Title III, or Section 704 or 705(b) of the FISA.

April 20, 2012

April 20, 2012

Pleading / Motion / Brief

[Redacted]

Government's Submission of Amendments to Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the FISA

In Re Electronic Surveillance and Physical Search of International Terrorist Groups, Their Agents, and Related Targets

April 23, 2012

April 23, 2012

Pleading / Motion / Brief

Resources

Docket

Last updated Aug. 14, 2022, 3:05 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Court

Key Dates

Filing Date: 2002

Case Ongoing: No

Plaintiffs

Plaintiff Description:

United States

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812

Constitutional Clause(s):

Freedom of speech/association

Unreasonable search and seizure

Special Case Type(s):

Warrant or subpoena application

Availably Documents:

None of the above

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Order Duration: 2002 - None

Content of Injunction:

Monitoring

Recordkeeping

Reporting

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues