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.

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


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