Cite as 551 F.3d 1004 (Foreign Int.Surv.Ct.Rev. 2008)
lactic procedures have been implemented in bad faith.
Similarly, the fact that there is some potential for error is not a sufficient reason to invalidate the surveillances. [redacted text]
Equally as important, some risk of error exists under the original EISA procedures—procedures that received our imprimatur in Sealed Case, 310 F.3d at 746. A prior judicial review process does not ensure that the types of errors complained of here [redacted text] would have been prevented.
It is also significant that effective minimization procedures are in place. These procedures serve as an additional backstop against identification errors as well as a means of reducing the impact of incidental intrusions into the privacy of non-targeted United States persons. The minimization procedures implemented here are almost identical to those used under FISA to ensure the curtailment of both mistaken and incidental acquisitions. These minimization procedures were upheld by the FISC in this case, and the petitioner stated at oral argument that it is not quarreling about minimization but, rather, about particularity. Thus, we see no reason to question the adequacy of the minimization protocol.
The petitioner’s concern with incidental collections is overblown. It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.[1] See, e.g., United States v. Kahn, 415 U.S. 143, 157–58, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974); United States v. Schwartz, 535 F.2d 160, 164 (2d Cir.1976). The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.
To the extent that the petitioner may be concerned about the adequacy of the targeting procedures, it is worth noting that those procedures include provisions designed to prevent errors. [redacted text] Furthermore, a PAA provision codified at 50 U.S.C. § 1805b(d) requires the AG and the DNI to assess compliance with those procedures and to report to Congress semi-annually.
4. A Parting Shot. The petitioner fires a parting shot. It presented for the first time at oral argument a specific privacy concern that could possibly arise under the directives. This parting shot may have been waived by the failure to urge it either before the FISC or in the petitioner’s pre-argument filings in this court. We need not probe that point, however, because the petitioner is firing blanks: no issue falling within this description has arisen to date. Were such an issue to arise, there are safeguards in place that may meet the reasonableness standard. We do, however, direct the government promptly to notify the petitioner if this issue arises under the directives.[2]
The foregoing paragraph is a summary of our holding on this issue. We discuss with greater specifity the petitioner’s argument, the government’s safeguards, and our order in the classified version of this opinion.
