United States Department of Justice, Letter to Judge John D. Bates of the US Foreign Intelligence Surveillance Court from *redacted* of the Department of Justice, Office of Intelligence, National Security Division, Re:Clarification of National Security Agency's Upstream Collection Pursuant to Section 702 of FISA . May 2, 2011. Declassified.
National Security Archive
A 2011 DOJ letter to the FISC reveals NSA’s upstream Internet collection could capture purely domestic emails merely mentioning a foreign target’s selector, raising early privacy concerns.
Source: United States Department of Justice, Letter to Judge John D. Bates of the US Foreign Intelligence Surveillance Court from redacted of the Department of Justice, Office of Intelligence, National Security Division, Re:Clarification of National Security Agency's Upstream Collection Pursuant to Section 702 of FISA . May 2, 2011. Declassified. Date: May 2, 2011 Archive: Director of National Intelligence Collection: Cyber Vault: IRS Employees and Electronic Filing Fraud Sep 20, 2017
Editorial Analysis
Original analysis by the DriftSeas editorial desk. The complete primary-source document, transcribed from the National Security Archive scan, appears in full below.
The Letter’s Immediate Context
On May 2, 2011, the Department of Justice’s National Security Division wrote to Judge John D. Bates of the Foreign Intelligence Surveillance Court (FISC) to clarify how the NSA conducts "upstream" collection under Section 702 of the FISA Amendments Act. The letter follows an April 21, 2011 NSA briefing to DOJ and the Office of the Director of National Intelligence, and it is submitted pursuant to FISC Rule 13(a), which requires the government to inform the court of significant changes in surveillance practices. The timing places the disclosure amid heightened judicial scrutiny of Section 702 after the 2008 amendments and several FISC opinions that had begun to question the scope of upstream collection. The redacted author, a senior official in DOJ’s Office of Intelligence, signals that the matter was still under internal review, yet the government felt compelled to provide "preliminary notice" to the court.
What the Letter Reveals About Upstream Collection
The document confirms that NSA’s upstream collection is not limited to communications "to or from" a tasked selector; it also acquires any Internet communication that "contains a reference to a tasked selector." The letter provides a concrete example: an email message that is neither addressed to nor about a targeted individual, but whose body includes the selector (e.g., an email address or identifier) will be captured. This means that purely domestic communications—where both sender and recipients are located in the United States—can be swept up if they happen to mention a foreign target’s selector somewhere in the text. The government acknowledges that this raises concerns about the effectiveness of its minimization procedures, which rely on IP‑filters and other safeguards to prevent the intentional acquisition of wholly domestic communications. NSA, NSD, and ODNI are explicitly said to be "continuing to examine what affect, if any, the type of Internet communications collection discussed in this letter has on the efficacy of these measures."
Why This Disclosure Matters Today
This 2011 clarification foreshadowed the public debates that erupted after Edward Snowden’s 2013 disclosures, which showed that upstream collection harvested vast quantities of Internet traffic, including emails and chats unrelated to foreign targets. The letter’s admission that the government was already aware of the over‑collection problem—and was actively assessing its impact on domestic‑communication safeguards—undermines later claims that the scope of Section 702 was misunderstood or unforeseen. It also provides a factual foundation for subsequent reforms, such as the 2015 USA FREEDOM Act’s stricter limits on upstream collection and the increased transparency requirements imposed on the FISC. By revealing that the government itself was grappling with the tension between foreign‑intelligence needs and domestic‑privacy protections well before the Snowden leaks, the document underscores how internal oversight mechanisms can fail when agencies interpret broad statutory language in ways that outpace judicial and congressional oversight.
All withheld information exempt under b(1) and b(3) unless otherwise noted.
Approved for public release.
U.S. Department of Justice
National Security Division
[U.S. FOREIGN INTELLIGENCE SURVEILLANCE COURT]
[2011 MAY -2 AM 11:48]
TOP SECRET//COMINT//NOFORN
Washington, D.C. 20530
[LEEANN FLYNN HALL CLERK OF COURT]
May 2, 2011
The Honorable John D. Bates United States Foreign Intelligence Surveillance Court 333 Constitution Avenue, N.W. Washington, D.C. 20001
Re: Clarification of National Security Agency's
Upstream Collection Pursuant to Section 702 of
FISA. (S//SI//NF)
Dear Judge Bates:
On April 21, 2011, the National Security Agency (NSA) provided the National Security
Division (NSD) and the Office of the Director of National Intelligence (ODNI) information
clarifying the manner in which NSA acquires certain communications through its upstream
collection platforms pursuant to Section 702 of the Foreign Intelligence Surveillance Act of
1978, as amended (FISA). Although NSA, NSD, and ODNI are still reviewing this matter and
assessing its import, we are providing preliminary notice at this time pursuant to Rule 13(a) of
the Rules of Procedure for the Foreign Intelligence Surveillance Court, effective November 1,
2010, in order provide the Court with this additional clarifying information. We have worked
closely in these efforts with NSA officials, who have assisted in drafting and reviewing this
notice to the Court. (TS//SI//NF)
As previously described to the Court, in conducting upstream collection using electronic communication accounts/addresses/identifiers (hereinafter "selectors") pursuant to Section 702, NSA acquires Internet communications that are to or from a tasked selector, or which contain a reference to a tasked selector. The term "Internet communications," as described by the Director of NSA in affidavits supporting DNI/AG 702(g) certifications, "is intended to include electronic communications that
702(g) Certification Director, NSA, filed 2010, ¶ 6. See, e.g., DNI/AG Affidavit of General Keith B. Alexander,
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Classified by: Tashina Gauhar, Deputy Assistant Attorney General, NSD, DOJ Reason: 1.4(c) Declassify on: May 2, 2036
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All withheld information exempt under b(1) and b(3) unless otherwise noted.
Approved for public release.
TOP SECRET//COMINT//NOFORN
(TS//SI//NF)
In past representations to the Court, the Government used as an example of upstream collection the acquisition of that contained a selector that NSA had tasked under Section 702, such that NSA acquired the while it was being transmitted to or from a user of the non-tasked account.¹
Based on recent discussions among NSA, NSD, and ODNI regarding one specified category of Internet communications acquired through upstream collection—"electronic communications"—and in view of the complexity of this issue and the prior representations to the Court, the Government believes that further description of the scope of NSA's upstream collection is warranted. (TS//SI//NF)
One type of "electronic communications
² (TS//SI//NF)
Depending on , the data transmitted may also include
¹
(TS//SI//NF)
²
(TS//SI//NF)
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2
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All withheld information exempt under b(1) and b(3) unless otherwise noted. Approved for public release. TOP SECRET//COMINT//NOFORN
including e-mail messages that are not to, from, or about a Section 702-targeted individual. For example,
The content of would be acquired through NSA's Section 702 upstream collection if a tasked selector appeared anywhere
(TS//SI//NF)
As this example demonstrates, an individual Internet communication can contain a single piece of information, or it could contain multiple pieces of information.
(TS//SI//NF)
Additionally, as described in the NSA's targeting procedures, "in those cases where NSA seeks to acquire communications about the target that are not to or from the target, NSA will employ either an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas, or See, e.g., DNI/AG 702(g) Certification Exhibit A at 2. It is through these measures that NSA prevents the intentional acquisition of Internet communications that contain a reference to a targeted selector where the sender and all intended recipients are known at the time of acquisition to be located in the United States. See, e.g., In re DNI/AG Certification No. 702(i)-08-01, Mem. Op. at 19 (USFISC Sept. 4, 2008). NSA, NSD, and ODNI are continuing to examine what affect, if any, the type of Internet communications collection discussed in this letter has on the efficacy of these measures. (TS//SI//NF)
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All withheld information exempt under b(1) and b(3) unless otherwise noted. Approved for public release. TOP SECRET//COMINT//NOFORN
NSA, NSD, and ODNI are continuing to review and assess this matter and will provide additional information to the Court as appropriate. We appreciate the Court's consideration of this matter and welcome additional opportunities to present further information to the Court. (TS//SI//NF)
Respectfully submitted, [Redacted] Office of Intelligence, NSD U.S. Department of Justice
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