Opinion and Order Regarding Use and Disclosure of Information, In re Carter W. Page, a U.S. Person

Holding, Findings, and Matters of Law

After the government acknowledged at least some of its collection under color of the FISC orders approving targeting Carter W. Page was unlawful, it contends that it must retain and potentially disclose this information, in the context of anticipated litigation. Id. at 1. However, the 50 U.S.C. §§ 1809(a)(2) and 1827(a)(2) criminalize intentional use and disclosure of information acquired by authorized electronic surveillance or physical search conducted under the color of a FISA authorization. Id. at 2. The Court has recognized that § 1809(a)(2) has an exception for actions that are necessary to mitigate or prevent the harms at which this section is address, such as where use or disclosure may be necessary to avoid similar instances of overcollection. Id. at 4-5. The Court approved use or disclosure of Page FISA information relating to third-party FOIA litigation and future claims brought by Page insofar as “necessary for the good-faith conduct” of that litigation and those claims. Id. at 20. Further use or disclosure of Page FISA information is permitted insofar “as necessary to effective performance or disciplinary reviews of governmental personnel,” or “as necessary to investigate or prosecute potential crimes relating to the conduct of the Page or Crossfire Hurricane investigations.” Id. at 20-21.

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