A. APPLICABILITY AND SCOPE
This procedure governs the kinds of information about United States persons
that may be disseminated, without their consent, outside the DoD intelligence
component that collected and retained the information. It does not
apply to information collected solely for administrative purposes; or
disseminated pursuant to law; or pursuant to a court order that otherwise
imposes controls upon such dissemination.
B. CRITERIA FOR DISSEMINATION
Except as provided in section C., below, information about United States
persons that identifies those persons may be disseminated without the consent
of those persons only under the following conditions:
1. The information was collected or retained or both under Procedures 2 and
3;
2. The recipient is reasonably believed to have a need to receive such
information for the performance of a lawful governmental function, and is
one of the following:
a. An employee of the Department of Defense, or an employee of a contractor
of the Department of Defense, and has a need for such information in the
course of his or her official duties;
b. A law enforcement entity of federal, state, or local government, and the
information may indicate involvement in activities which may violate laws
which the recipient is responsible to enforce;
c. An agency within the intelligence community; provided that within the
intelligence community, information other than information derived from signals
intelligence, may be disseminated to each appropriate agency for the purpose
of allowing the recipient agency to determine whether the information is
relevant to its responsibilities without such a determination being required
of the disseminating DoD intelligence comPonent;
d. An agency of the federal government authorized to receive such information
in the performance of a lawful governmental function; or
e. A foreign government, and dissemination is undertaken pursuant to an agreement
or other understanding with such government.
C. OTHER DISSEMINATION
Any dissemination that does not conform to the conditions set forth in section
B., above, must be approved by the legal office responsible for advising
the DoD Component concerned after consultation with the Department of Justice
and General Counsel of the Department of Defense. Such approval shall be
based on a determination that the proposed dissemination complies with applicable
laws, executive orders, and regulations.
PART 1: ELECTRONIC SURVEILLANCE IN THE UNITED STATES FOR INTELLIGENCE
PURPOSES
A. APPLICABILITY
This part of Procedure 5 implements the Foreign Intelligence Surveillance
Act of 1978 (reference (b)), and applies to electronic surveillance, as defined
in that Act, conducted by DoD intelligence components within the United States
to collect "foreign intelligence information " as defined in that Act.
B. GENERAL RULES
1. Electronic surveillance pursuant to the Foreign Intelligence Surveillance
Act. A DoD intelligence component may conduct electronic surveillance
within the United States for foreign intelligence and counterintelligence
purposes only pursuant to an order issued by a judge of the court appointed
pursuant to the Foreign Intelligence Surveillance Act of 1978 (reference
(b)), or pursuant to a certification of the Attorney General issued under
the authority of section 102(a) of the Act.
2. Authority to request electronic
surveillance. Authority to approve the submission of applications or
requests for electronic surveillance under the Foreign Intelligence Surveillance
Act of 1978 (reference (b)) shall be limited to the Secretary of Defense,
the Deputy Secretary of Defense, the Secretary or Under Secretary of a Military
Department, and the Director of the National Security Agency. Applications
for court orders will be made through the Attorney General after prior clearance
by the General Counsel, DoD. Requests for Attorney General certification
shall be made only after prior clearance by the General Counsel, DoD.
3. Electronic surveillance in
emergency situations.
a. A DoD intelligence component may
conduct electronic surveillance within the United States in emergency situations
under an approval from the Attorney General in accordance with section 105(e)
of reference (b).
b. The head of any DoD intelligence component may request that the DoD General
Counsel seek such authority directly from the Attorney General in an emergency,
if it is not feasible to submit such request through an official designated
in subsection B.2., above, provided the appropriate official concerned shall
be advised of such requests as soon as possible thereafter.
PART 2: ELECTRONIC SURVEILLANCE OUTSIDE THE UNITED STATES FOR INTELLIGENCE
PURPOSES
A. APPLICABILITY
This part of Procedure 5 applies
to electronic surveillance, as defined in Appendix A, for foreign intelligence
and counterintelligence purposes directed against United States persons who
are outside the United States, and who, under the circumstances, have a
reasonable expectation of privacy. It is intended to be applied in conjunction
with the regulation of electronic surveillance "within the United States"
under Part 1 and the regulation of "signals intelligence activities" under
Part 3, so that the intentional interception for foreign intelligence and
counterintelligence purposes of all wire or radio communications of persons
within the United States and against United States persons abroad where such
persons enjoy a reasonable expectation of privacy is covered by one of the
three parts. In addition, this part governs the use of electronic, mechanical,
or other surveillance devices for foreign intelligence and counterintelligence
purposes against a United States person abroad in circumstances where such
person has a reasonable expectation of privacy. This part does not apply
to the electronic surveillance of communications of other than United States
persons abroad or the interception of the communications of United States
persons abroad that do not constitute electronic surveillance.
B. EXPLANATION OF UNDEFINED TERMS
1. Electronic surveillance is "directed against a United States person" when
the surveillance is intentionally targeted against or designed to intercept
the communications of that person. Electronic surveillance directed against
persons who are not United States persons that results in the incidental
acquisition of the communications of a United States person does not thereby
become electronic surveillance directed against a United States person.
2. Electronic surveillance is "outside the United States" if the person against
whom the electronic surveillance is directed is physically outside the United
States, regardless of the location at which surveillance is conducted. For
example, the interception of communications that originate and terminate
outside the United States can be conducted from within the United States
and still fall under this part rather than Part 1.
C. PROCEDURES
Except as provided in section D., below, DoD intelligence components may
conduct electronic surveillance against a United States person who is outside
the United States for foreign intelligence and counterintelligence purposes
only if the surveillance is approved by the Attorney General. Requests for
approval will be forwarded to the Attorney General by an official designated
in section E.1., below. Each request shall include:
1. An identification or description
of the target.
2. A statement of the facts supporting a finding that:
a. There is probable cause to believe the target of the electronic surveillance
is one of the following:
(1) A person who, for or on behalf of a foreign power is engaged in clandestine
intelligence activities (including covert activities intended to affect the
political or governmental process), sabotage, or international terrorist
activities, or activities in preparation for international terrorist activities;
or who conspires with, or knowingly aids and abets a person engaging in such
activities;
(2) A person who is an officer or employee of a foreign power;
(3) A person unlawfully acting for, or pursuant to the direction of, a foreign
power. The mere fact that a person's activities may benefit or further the
aims of a foreign power is not enough to bring that person under this subsection,
absent evidence that the person is taking direction from, or acting in knowing
concert with, the foreign power;
(4) A corporation or other entity that is owned or controlled directly or
indirectly by a foreign power; or
(5) A person in contact with, or acting in collaboration with, an intelligence
or security service of a foreign power for the purpose of providing access
to information or material classified by the United States to which such
person has access.
b. The electronic surveillance is necessary to obtain significant foreign
intelligence or counterintelligence.
c. The significant foreign intelligence or counterintelligence expected to
be obtained from the electronic surveillance could not reasonably be obtained
by other less intrusive collection techniques.
3. A description of the significant foreign intelligence or counterintelligence
expected to be obtained from the electronic surveillance.
4. A description of the means by which the electronic surveillance will be
effected.
5. If physical trespass is required to effect the surveillance, a statement
of facts supporting a finding that the means involve the least amount of
intrusion that will accomplish the objective.
6. A statement of period of time, not to exceed 90 days, for which the electronic
surveillance is required.
7. A description of the expected dissemination of the product of the
surveillance, including a description of the procedures that will govern
the retention and dissemination of communications of or concerning United
States persons other than those targetted, acquired incidental to such
surveillance.
D. ELECTRONIC SURVEILLANCE IN EMERGENCY SITUATIONS
Notwithstanding section C., above, a DoD intelligence component may conduct
surveillance directed at a United States person who is outside the United
States in emergency situations under the following limitations:
1. Officials designated in section E., below, may authorize electronic
surveillance directed at a United States person outside the United States
in emergency situations, when securing the prior approval of the Attorney
General is not practical because:
a. The time required would cause failure or delay in obtaining significant
foreign intelligence or counterintelligence and such failure or delay would
result in substantial harm to the national security;
b. A person's life or physical safety is reasonably believed to be in immediate
danger; or
c. The physical security of a defense installation or government property
is reasonably believed to be in immediate danger.
2. Except for actions taken under paragraph D.1.b., above, any official
authorizing such emergency surveillance shall find-that one of the criteria
contained in paragraph C.2.a., above, is met. Such officials shall notify
the DoD General Counsel promptly of any such surveillance, the reason for
authorizing such surveillance on an emergency basis, and the expected results.
3. The Attorney General shall be
notified by the General Counsel, DoD, as soon as possible of the surveillance,
the circumstances surrounding its authorization, and the results thereof,
and such other information as may be required to authorize continuation of
such surveillance.
4. Electronic surveillance authorized pursuant to this section may not continue
longer than the time required for a decision by the Attorney General and
in no event longer than 72 hours.
E. OFFICIALS AUTHORIZED TO
REQUEST AND APPROVE ELECTRONIC SURVEILLANCE OUTSIDE THE UNITED STATES
1. The following officials may request approval of electronic surveillance
outside the United States under section C., above, and approve emergency
surveillance under section D., above:
a. The Secretary and Deputy Secretary of Defense.
b. The Secretaries and Under Secretaries of the Military Departments.
c. The Director and Deputy Director
of the National Security Agency/Chief, Central Security Service.
2. Authorization for emergency electronic
surveillance under section may also be granted by:
a. Any general or flag officer at the overseas location in question, having
responsibility for either the subject of the surveillance, or responsibility
for the protection of the persons, installations, or property that is endangered;
or
b. The Deputy Director for Operations, National Security Agency.
PART 3: SIGNALS INTELLIGENCE
ACTIVITIES
A. APPLICABILITY AND SCOPE
1. This procedure governs the conduct by the United States Signals Intelligence
System of signals intelligence activities that involve the collection, retention,
and dissemination of foreign communications and military tactical communications.
Such activities may incidentally involve the collection of information concerning
United States persons without their consent, or may involve communications
originated or intended for receipt in the United States, without the consent
of a party thereto.
2. This part of Procedure 5 shall be supplemented by a classified Annex
promulgated by the Director, National Security Agency/Chief, Central Security
Service, which shall also be approved by the Attorney General. That regulation
shall provide that signals intelligence activities which constitute electronic
surveillance, as defined in Parts 1 and 2 of this procedure, will be authorized
in accordance with those parts. Any information collected incidentally about
United States persons shall be subjected to minimization procedures approved
by the Attorney General.
B. EXPLANATION OF UNDEFINED TERMS
1. Communications concerning a United States person are those in which
the United States person is identified in the communication. A United States
person is identified when the person's name, unique title, address or other
personal identifier is revealed in the communication in the context of activities
conducted by that person or activities conducted by others and related to
that person. A reference to a product by brand name or manufacturer's name
or the use of a name in a descriptive sense, as, for example, "Monroe Doctrine,"
is not an identification of a United States person.
2. Interception means the acquisition by the United States Signals
Intelligence system through electronic means of a nonpublic communication
to which it is not an intended party, and the processing of the contents
of that communication into an intelligible form but not including the display
of signals on visual display devices intended to permit the examination of
the technical characteristics of the signals without reference to the information
content carried by the signals.
3. Military tactical communications means United States and allied
military exercise communications within the United States and abroad necessary
for the production of simulated foreign intelligence and counterintelligence
or to Permit an analysis of communications security.
4. United States person. For purposes of signals intelligence activities
only, the following guidelines will apply in determining whether a person
is a United States person:
a. A person known to be currently in the United States will be treated as
a United States person unless the nature of the person's communications or
other available information concerning the person gives rise to a reasonable
belief that such person is not a United States citizen or permanent resident
alien.
b. A person known to be currently outside the United States, or whose location
is not known, will not be treated as a United States person unless the nature
of the person's communications or other available information concerning
the person give rise to a reasonable belief that such person is a United
States citizen or permanent resident alien.
c. A person known to be an alien admitted for permanent residence may be
assumed to have lost status as a United States person if the person leaves
the United States and it is known that the person is not in compliance with
the administrative formalities provided by law that enable such persons to
reenter the United States without regard to the provisions of law that would
otherwise restrict an alien's entry into the United States. The failure to
follow the statutory procedures provides a reasonable basis to conclude that
such alien has abandoned any intention of maintaining status as a Permanent
resident alien.
d. An unincorporated association whose headquarters are located outside the
United States may be presumed not to be a United States person unless the
collecting agency has information indicating that a substantial number of
members are citizens of the United States or aliens lawfully admitted for
permanent residence.
5. United States Signals Intelligence System means the unified
organization for signals intelligence activities under the direction of the
Director, National Security Agency/Chief, Central Security Service, comprised
of the National Security Agency, the Central Security Service, the components
of the military services authorized to conduct signals intelligence and such
other entities (other than the Federal Bureau of Investigation) as are authorized
by the National Security Council or the Secretary of Defense to conduct signals
intelligence. FBI activities are governed by procedures promulgated by the
Attorney General.
C. PROCEDURES
1. Foreign communications. The United States Signals Intelligence
System may collect, process, retain, and disseminate foreign communications
that are also communications of or concerning United States persons, but
only in accordance with the classified annex to this procedure.
2. Military tactical communications. The United States Signals
Intelligence System may collect, process, retain, and disseminate military
tactical communications that are also communications of or concerning United
States persons but only in accordance with the classified annex to this
procedure.
a. Collection. Collection efforts will be conducted in the same manner
as in the case of signals intelligence for foreign intelligence purposes
and must be designed in such a manner as to avoid to the extent feasible
the intercept of communications not related to military exercises.
b. Retention and processing. Military tactical communications may
be retained and processed without deletion of references to United States
persons who are participants in, or are otherwise mentioned in exercise-related
communications, provided that the communications of United States persons
not participating in the exercise that are inadvertently intercepted during
the exercise shall be destroyed as soon as feasible.
c. Dissemination. Dissemination of military tactical communications
and exercise reports or information files derived from such communications
shall be limited to those authorities and persons participating in or conducting
reviews and critiques of such exercise.
PART 4: TECHNICAL SURVEILLANCE COUNTERMEASURES
A. APPLICABILITY AND
SCOPE
This part of Procedure 5 applies to the use of electronic equipment to determine
the existence and capability of electronic surveillance equipment being used
by persons not authorized to conduct electronic surveillance. It implements
section 105(f)(2) of the Foreign Intelligence Surveillance Act (reference
(b)).
B. EXPLANATION OF UNDEFINED TERMS
The term technical surveillance countermeasures refers to activities
authorized pursuant to DoD Directive 5200.29 (reference (c)), and, as used
in this procedure, refers to the use of electronic surveillance equipment,
or electronic or mechanical devices, solely for determining the existence
and capability of electronic surveillance equipment being used by persons
not authorized to conduct electronic surveillance, or for determining the
susceptibility of electronic equipment to unlawful electronic surveys.
C. PROCEDURES
A DoD intelligence component may use technical surveillance countermeasures
that involve the incidental acquisition of the nonpublic communications of
United States persons without their consent, provided:
1. The use of such countermeasures has been authorized or consented to by
the official in charge of the facility, organization, or installation where
the countermeasures are to be undertaken;
2. The use of such countermeasures is limited in extent and duration to that
necessary to determine the existence and capability of such equipment; and
3. Access to the content of communications acquired during the use of
countermeasures is limited to persons involved directly in conducting such
measures, and any content acquired is destroyed as soon as practical or upon
completion of the particular use. However, if the content is acquired within
the United States, only information which is necessary to protect against
unauthorized electronic surveillance, or to enforce Chapter 119 of title
18, United States Code (reference (d)) and Section 605 of the Communication
Act of 1934 (reference (e)), may be retained and disseminated only for these
purposes. If acquired outside the United States, information which indicates
a violation of federal law, including the Uniform Code of Military Justice
(reference (f)), or a clear and imminent threat to life or property, may
also be disseminated to appropriate law enforcement authorities. A record
of the types of communications and information subject to acquisition by
the illegal electronic surveillance equipment may be retained.
PART 5: DEVELOPING, TESTING, AND CALIBRATION OF ELECTRONIC
EQUIPMENT
A. APPLICABILITY
This part of Procedure 5 applies to developing, testing, or calibrating
electronic equipment that can intercept or process communications and
non-communications signals. It also includes research and development that
needs electronic communications as a signal source.
B. PROCEDURES
1. Signals authorized for use.
a. The following may be used without restriction:
(1) Laboratory-generated signals.
(2) Communications signals with the consent of the communicator.
(3) Communications in the commercial or public service broadcast bands.
(4) Communications transmitted between terminals located outside of the United
States not used by any known United States person.
(5) Non-communications signals (including telemetry, and radar).
b. Communications subject to lawful electronic surveillance under the provisions
of Parts 1, 2, or 3 of this procedure may be used subject to the minimization
procedures applicable to such surveillance.
c. Any of the following may be used subject to the restrictions of subsection
B.2., below.
(1) Communications over official government communications circuits with
consent from an appropriate official of the controlling agency.
(2) Communications in the citizens and amateur-radio bands.
d. Other signals may be used only when it is determined that it is not practical
to use the signals described above and it is not reasonable to obtain the
consent of persons incidentally subjected to the surveillance. The restrictions
of subsection B.2., below, will apply in such cases. The Attorney General
must approve use of signals pursuant to this subsection for the purpose of
development, testing, or calibration when the period of use exceeds 90 days.
When Attorney General approval is required, the DoD intelligence component
shall submit a test proposal to the General Counsel, DoD, or the NSA General
Counsel for transmission to the Attorney General for approval. The test proposal
shall state the requirement for a period beyond 90 days, the nature of the
activity, the organization that will conduct the activity, and the proposed
disposition of any signals or communications acquired during the activity.
2. Restrictions.
For signals described in paragraph B.1.c. and d., above, the following
restrictions apply:
a. The surveillance shall be limited in scope and duration to that necessary
for the purposes referred to in section A., above.
b. No particular United States person shall be targeted intentionally without
consent.
c. The content of any communication shall:
(1) Be retained only when actually needed for the purposes referred to in
section A. above,
(2) Be disseminated only to persons conducting the activity, and
(3) Be destroyed immediately upon completion of the activity.
d. The technical parameters of a
communication (such as frequency, modulation, bearing, signal strength, and
time of activity) may be retained and used for the purposes outlined in section
A., above, or for collection avoidance purposes. Such parameters may be
disseminated to other DoD intelligence components and other entities authorized
to conduct electronic surveillance or related development, testing, and
calibration of electronic equipment provided such dissemination and use are
limited to the purposes outlined in section A. Or collection avoidance purposes.
No content of any communication may be retained or used other than as provided
in paragraph B.2.c., above.
PART 6. TRAINING OF PERSONNEL IN THE OPERATION AND USE OF ELECTRONIC
COMMUNICATIONS EQUIPMENT
A. APPLICABILITY
This part of Procedure 5 applies to the training of personnel by DoD intelligence
components in the operation and use of electronic communications and surveillance
equipment. It does not apply to the interception of communications with the
consent of one of the parties to the communication or to the training of
intelligence personnel by non-intelligence components.
B. PROCEDURES
1. Training guidance. The traininG of personnel by DoD intelligence
components in the operation and use of electronic coMMunications and surveillance
equipment shall include guidance concerning the requirements and restrictions
of the Foreign Intelligence Surveillance Act of 1978 (reference (b)), and
E.O. 12333 (reference (a)), with respect to the unauthorized acquisition
and use of the content of coMMunications of United States persons.
2. Training limitations.
a. Except as permitted by paragraph B.2.b. and c., below, the
use of electronic communications and surveillance equipment for training
purposes is permitted, subject to the following limitations:
(1) To the maximum extent practical, use of such equipment for training purposes
shall be directed against communications which are subject to lawful electronic
surveillance for foreign intelligence and counterintelligence purposes under
Parts 1, 2, and 3 of this procedure.
(2) The contents of private communications of non-consenting United States
persons may not be acquired aurally unless the person is an authorized target
of electronic surveillance.
(3) The electronic surveillance will be limited in extent and duration to
that necessary to train personnel in the use of the equipment.
b. Public broadcasts, distress signals, or official U.S. Government
communications may be monitored, provided that when government agency
communications are monitored, the consent of an appropriate official is obtained.
c. Minimal acquisition of information is permitted as required for calibration
purposes.
3. Retention and dissemination. Information collected during training
that involves communications described in subparagraph B.2.a.(1), above,
shall be retained and disseminated in accordance with minimization procedures
applicable to that electronic surveillance. Information collected during
training that does not involve communications described in subparagraph
B.2.a.(1), above, or that is acquired inadvertently, shall be destroyed as
soon as practical or upon completion of the training and may not be disseminated
for any purpose. This limitation does not apply to distress signals.
PART 7: CONDUCT OF VULNERABILITY AND HEARABILITY SURVEYS
A. APPLICABILITY AND SCOPE
This part of Procedure 5 applies to the conduct of vulnerability surveys
and hearability surveys by DoD intelligence components.
B. EXPLANATION OF UNDEFINED
TERMS
1. The term vulnerability survey refers to the acquisition of radio
frequency propagation and its subsequent analysis to determine empirically
the vulnerability of the transmission media to interception by foreign
intelligence surveys.
2. The term hearability survey refers to monitoring radio communications
to determine whether a particular radio signal can be received at one or
more locations and, if reception is possible, to determine the quality of
reception over time.
C. PROCEDURES
1. Conduct of vulnerability surveys. Non-consensual surveys may be
conducted to determine the potential vulnerability to intelligence services
of a foreign power of transmission facilities of communications common carriers,
other private commercial entities, and entities of the federal government,
subject of the following limitations:
a. No vulnerability survey may be conducted without the prior written approval
of the Director, National Security Agency, or his designee.
b. No transmission may be acquired aurally.
c. No content of any transmission may be acquired by any means.
d. No transmissions may be recorded.
e. No report or log may identify any United States person or entity except
to the extent of identifying transmission facilities that are vulnerable
to surveillance by foreign powers. If the identities of the users of such
facilities are not identical with the identities of the owners of the facilities,
the identity of such users may be obtained but not from the content of the
transmissions themselves, and may be included in such report or log. Reports
may be disseminated. Logs may be disseminated only if required to verify
results contained in reports.
2. Conduct of hearability
surveys. The Director, National Security Agency, may conduct, or may
authorize the conduct by other agencies, of hearability surveys of
telecommunications that are transmitted in the United States.
a. Collection. When practicable, consent will be secured from the
owner or user of the facility against which the hearability survey is to
be conducted prior to the commencement of the survey.
b. Processing and Storage. Information collected during a hearability
survey must be processed and stored as follows:
(1) The content of communications may not be recorded or included in any
report.
(2) No microwave transmission may be demultiplexed or demodulated for any
purpose.
(3) No report or log may identify any person or entity except to the extent
of identifying the transmission facility that can be intercepted from the
intercept site. If the identities of the users of such facilities are not
identical with the identities of the owners of the facilities, and their
identities are relevant to the purpose for which the hearability survey has
been conducted, the identity of such users may be obtained provided such
identities may not be obtained from the contents of the transmissions themselves.
c. Dissemination. Reports may be disseminated only within the U.S.
Government. Logs may not be disseminated unless required to verify results
contained in reports.
A. APPLICABILITY AND SCOPE
1. This procedure applies to concealed
monitoring only for foreign intelligence and counterintelligence purposes
conducted by a DoD intelligence component within the United States or directed
against a United States person who is outside the United States where the
subject of such monitoring does not have a reasonable expectation of privacy,
as explained in section B., below, and no warrant would be required if undertaken
for law enforcement purposes.
2. Concealed monitoring in the United States for foreign intelligence and
counterintelligence purposes where the subject of such monitoring has a
reasonable expectation of privacy and a warrant would be required for law
enforcement purposes shall be treated as "electronic surveillance within
the United States" under Part 1 of Procedure 5, and processed pursuant to
that procedure.
3. Concealed monitoring for foreign intelligence and counterintelligence
purposes of a United States person abroad where the subject of such monitoring
has a reasonable expectation of privacy and a warrant would be required for
law enforcement purposes shall be treated as "electronic surveillance outside
the United States" under Part 2 of Procedure 5, and processed pursuant to
that procedure.
4. Concealed monitoring for foreign
intelligence and counterintelligence purposes when the monitoring is a signals
intelligence activity shall be conducted pursuant to Part 3 of Procedure
5.
B. EXPLANATION OF UNDEFINED TERMS
1. Concealed monitoring means
targetting by electronic, optical, or mechanical devices a particular person
or a group of persons without their consent in a surreptitious and continuous
manner. Monitoring is surreptitious when it is targeted in a manner designed
to keep the subject of the monitoring unaware of it. Monitoring is continuous
if it is conducted without interruption for a substantial period of time.
2. Monitoring is within the United
States if the monitoring device, or the target of the monitoring, is
located within the United States.
3. Whether concealed monitoring is to occur where the subject has a reasonable
expectation of privacy is a determination which depends upon the circumstances
of a particular case, and shall be made only after consultation with the
legal office responsible for advising the DoD intelligence component concerned.
Reasonable expectation of privacy is the extent to which a reasonable person
in the particular circumstances involved is entitled to believe his or her
actions are not subject to monitoring by electronic, optical, or mechanical
devices. For example, there are ordinarily reasonable expectations of privacy
in work spaces if a person's actions and papers are not subject to ready
observation by others under normal working conditions. Conversely, a person
walking out of his or her residence into a public street ordinarily would
not have a reasonable expectation that he or she is not being observed or
even photographed; however, such a person ordinarily would have an expectation
of privacy within his or her residence.
C. PROCEDURES
1. Limitations on use of concealed monitoring. Use of concealed monitoring
under circumstances when the subject of such monitoring has no reasonable
expectation of privacy is subject to the following limitations:
a. Within the United States, a DoD intelligence component may conduct concealed
monitoring only on an installation or facility owned or leased by DoD, or
otherwise in the course of an investigation conducted pursuant to the Agreement
Between the Secretary of Defense and the Attorney General (reference (g)).
b. Outside the United States, such monitoring may be conducted on installations
and facilities owned or leased by the Department of Defense. Monitoring outside
such facilities shall be conducted after coordination with appropriate host
country officials, if such coordination is required by the Governing Status
of Forces Agreement, and with the Central Intelligence Agency.
2. Required determination.
Concealed monitoring conducted under subsection C.1., requires approval by
an official designated in subsection C.3., below, based on a determination
that such monitoring is necessary to the conduct of assigned foreign intelligence
or counterintelligence functions, and does not constitute electronic surveillance
under Parts 1 or 2 of Procedure 5.
3. Officials authorized to approve concealed
monitoring. Officials authorized to approve concealed monitoring under this
procedure include the Deputy Under Secretary of Defense (Policy); the Director,
Defense Intelligence Agency; the Director, National Security Agency; the
Assistant Chief of Staff for Intelligence, Department of Army; the Director,
Naval Intelligence; the Director of Intelligence, U.S. Marine Corps; the
Assistant Chief of Staff, Intelligence, U.S. Air Force; the Commanding General,
Army Intelligence and Security Command; the Director, Naval Investigative
Service; and the Commanding Officer, Air Force Office of Special Investigations.
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