DoDM 5240.01, August 8, 2016
SECTION 3: PROCEDURES 23
i. Dissemination Not Conforming to This Procedure. Any proposed dissemination that
does not conform to the requirements of this procedure must be approved by the Defense
Intelligence Component head on the advice of the Defense Intelligence Component’s legal
office, after consultation with the GC DoD and the National Security Division of the Department
of Justice, and the relevant Defense Intelligence Component privacy and civil liberties officials.
Such approval will be based on a determination that the proposed dissemination complies with
applicable laws, Executive orders, and regulations.
3.5. PROCEDURE 5. ELECTRONIC SURVEILLANCE.
a. Scope. This procedure implements FISA and E.O. 12333. A Defense Intelligence
Component may conduct electronic surveillance for an intelligence purpose in accordance with
FISA or E.O. 12333 and this procedure. The legal framework for conducting electronic
surveillance is dependent upon the Defense Intelligence Component’s mission, the U.S. person
status and location of the target, the methods used to conduct the electronic surveillance, and the
type of communication sought. All electronic surveillance must also comply with Procedures 1
through 4 of this issuance.
(1) Need for Guidance. The authorities governing electronic surveillance are complex
and subject to change. This procedure addresses the situations that most frequently arise and,
even for those situations, only describes some of the legal requirements. Accordingly, Defense
Intelligence Component personnel should seek the guidance of legal counsel when planning and
conducting electronic surveillance.
(2) Other Legal Authorities. In addition to the legal authorities discussed in this
procedure, other authorities, Sections 1841-1846 of Title 50, U.S.C., and Sections 3121-3127 of
Title 18, U.S.C., exist for the use of pen register and trap-and-trace devices, which are devices
used to obtain dialing, routing, addressing, or signaling information such as telephone numbers
or e-mail addresses. Sections 2510-2522 of Title 18, U.S.C. also govern electronic surveillance
conducted as part of a criminal investigation.
(3) Definition of Terms. For definitions of “CI,” “consent,” “dissemination,”
“electronic surveillance,” “foreign intelligence,” “foreign power,” “radio communications
hearability survey,” “reasonable expectation of privacy,” “retention,” “technical surveillance
countermeasures (TSCM),” “transmission media vulnerability survey,” “United States,” “U.S.
person,” and “USPI,” see the Glossary. In addition, for purposes of this procedure, the term
“Attorney General” includes the Acting Attorney General, the Deputy Attorney General, or the
Assistant Attorney General for National Security.
b. Compliance with the Fourth Amendment. All electronic surveillance must comply
with the Fourth Amendment to the Constitution. Defense Intelligence Component legal counsel
will assess the reasonableness of collection and restrictions on the retention and dissemination of
USPI to ensure protection of Fourth Amendment rights and, when necessary, will consult with
Defense Intelligence Component privacy and civil liberties officials and the Department of
Justice.