FISC Judge Howard’s Authorization of Warrantless Surveillance

The government had originally applied for a warrant that would allow NSA agents to make probable cause determinations and decisions on which communications to target, regardless of where email addresses and phone numbers were used. While the application was pending, however, Judge Howard orally indicated that he would only issue such a warrant for communications to and from email addresses and phone numbers that were not believed to be used within the United States.

On January 10, 2007, the judge granted the government’s application of January 9 for a traditional FISA warrant to intercept international communications to and from specific phone numbers reasonably believed to be used within the United States. See Order and Memorandum Opinion, In Re [Redacted], Docket Number [Redacted] (FISC filed April 3, 2007). He found probable cause to believe that each of the listed phone numbers was being or about to be used by known or unknown agents of a foreign power engaged in international terrorism. Order, In re Various Known and Unknown Agents of [Redacted] Presumed United States Persons, Docket Number [Redacted] (FISC filed Jan. 10, 2007).

Also on January 10, Judge Howard issued a warrant authorizing NSA agents to make targeting decisions and determinations of probable cause for telephone numbers and email addresses that “NSA reasonably believes are being used by persons outside the United States.” Order, In re [Redacted], Docket Number [Redacted] at 12. International communications to and from the selector telephone and email addresses, or referring to selector email addresses, were to be collected from the communications that the warrant authorized the NSA to indiscriminately intercept from telecommunications access points. As per the government’s proposed minimization procedures, the NSA was to inform the judge every 30 days of new selectors used to target communications and to briefly summarize agents’ reasons for finding probable cause that selectors were being or about to be used by members or agents of the foreign power. Should the judge find that there was not probable cause, collection of communications to and from a selector could be ordered to cease and the segregation and/or disposition of communications previously acquired with the use of that selector could be ordered.

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