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Civil Rights Litigation Clearinghouse
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Case Name In Re Electronic Surveillance and Physical Search of International Terrorist Groups, Their Agents, and Related Targets [Raw Take Order Docket 02-431] NS-DC-0049
Docket / Court 02-431 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Court
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 FISA Court on July 22, 2002. Prior to this order, with only narrow exceptions, NSA was authorized to share information gathered under FISA only after " ... read more >
This is the Foreign Intelligence Surveillance Act (FISA) case that led to what NSA personnel have labeled the "Raw Take" order, issued by the FISA Court 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 FISA Court order dated July 22, 2002, the FISA Court had since Jan. 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 Court.

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 Court 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 court 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 FISA Court.

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.

Margo Schlanger - 03/03/2015
Joshua Arocho - 07/06/2015


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Issues and Causes of Action
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Issues
Content of Injunction
Monitoring
Recordkeeping
Reporting
Warrant/order for search or seizure
General
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Causes of Action FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812
Defendant(s) None on record
Plaintiff Description The US.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement

Source of Relief Litigation
Form of Settlement None on record
Order Duration 2002 - n/a
Case Closing Year n/a
Case Ongoing No
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
No docket sheet currently in the collection
General Documents
[No title] [NSA Timeline of Surveillance Law Developments: includes July 2002 “Raw Take” sharing order]
NS-DC-0049-0001.pdf | Detail
Standard Minimization Procedures for Electronic Surveillance Conducted by the National Security Agency (NSA) (Exhibit B to 2 May 2002 Motion) 07/01/1997
NS-DC-0049-0010.pdf | Detail
Document Source: Office of the Director of National Intelligence
Motion for Amended Orders Permitting Modified Minimization Procedures 05/10/2002
NS-DC-0049-0003.pdf | Detail
Order 05/10/2002 (FISC)
NS-DC-0049-0004.pdf | Detail
CIA Minimization Procedures for Information from FISA Electronic Surveillance and Physical Search Conducted by the FBI (Exhibit A to May 10 2002 Motion) 05/10/2002
NS-DC-0049-0005.pdf | Detail
Order 07/22/2002 (FISC)
NS-DC-0049-0002.pdf | Detail
Document Source: Office of the Director of National Intelligence
Procedures for the Dissemination by NSA to Foreign Governments of Information From FISA Electronic Surveillance or Physical Search Conducted by the FBI 08/20/2002
NS-DC-0049-0009.pdf | Detail
Motion and Order for ("Permanent") Continuation of Amended Order (of 22 July 2002) 05/14/2004 (FISC)
NS-DC-0049-0011.pdf | Detail
Document Source: Office of the Director of National Intelligence
CIA Minimization Procedures for Information from FISA Electronic Surveillance Conducted by NSA 12/13/2006
NS-DC-0049-0006.pdf | Detail
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. 04/20/2012
NS-DC-0049-0012.pdf | Detail
Document Source: Office of the Director of National Intelligence
Government's Submission of Amendments to Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the FISA 04/23/2012
NS-DC-0049-0007.pdf | Detail
Memorandum Opinion and Order 05/18/2012 (FISC)
NS-DC-0049-0008.pdf | Detail
Judges Baker, Harold Albert (E.D. Ill., FISC, C.D. Ill.)
NS-DC-0049-0002
Brotman, Stanley Seymour (FISC, D.N.J.)
NS-DC-0049-0002
Carr, James G. (N.D. Ohio, FISC) [Magistrate]
NS-DC-0049-0002
Conway, John Edwards (FISC, D.N.M.)
NS-DC-0049-0002
Davis, Michael James (FISC, D. Minn.)
NS-DC-0049-0002
Gorton, Nathaniel M. (FISC, D. Mass.)
NS-DC-0049-0002
Hilton, Claude M. (FISC, E.D. Va.)
NS-DC-0049-0002
Kollar-Kotelly, Colleen (FISC, D.D.C.)
NS-DC-0049-0002 | NS-DC-0049-0011
McLaughlin, Mary A. (FISC, E.D. Pa.)
NS-DC-0049-0008
Robertson, James (D.D.C.)
NS-DC-0049-0002
Stafford, William Henry Jr. (FISC, N.D. Fla.)
NS-DC-0049-0002
Monitors/Masters None on record
Plaintiff's Lawyers Ashcroft, John (District of Columbia)
NS-DC-0049-0009 | NS-DC-0049-0011
Baker, James A. (District of Columbia)
NS-DC-0049-0003 | NS-DC-0049-0011
Comey, James Brien (Virginia)
NS-DC-0049-0011
Holder, Eric H. Jr. (District of Columbia)
NS-DC-0049-0007 | NS-DC-0049-0012
Reno, Janet (District of Columbia)
NS-DC-0049-0005 | NS-DC-0049-0010
Defendant's Lawyers None on record
Other Lawyers None on record

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