Release of FISA Opinion Regarding Electronic Surveillance Technique


Release of FISA Opinion Regarding Electronic Surveillance Technique

 

September 23, 2020

Today the Office of the Director of National Intelligence, in consultation with the Department of Justice, releases a March 5, 2020, opinion by the Foreign Intelligence Surveillance Court (FISC).

Title I of the Foreign Intelligence Surveillance Act of 1978 (FISA) requires that prior to issuing an order authorizing electronic surveillance, the FISC must determine, among other things, that there is probable cause to believe (A) that the target of the collection is a foreign power or agent of a foreign power, and (B) that “each of the facilities or places at which the electronic surveillance is to be directed is being used, or is about to be used, by a foreign power or agent of a foreign power.”  50 U.S.C. 1805(a)(2).

In the course of analyzing a novel, classified surveillance technique, the FISC’s March 2020 opinion examined each portion of the second half of these required findings, interpreting FISA with respect to what constitutes a “facility” at which surveillance may be directed, as well as whether the proposed surveillance was in fact “directed” at an appropriate facility. The FISC further addressed whether FISA requires the FISC to make a probable cause finding regarding the targeted facilities in their totality, or whether the FISC instead should make probable cause findings for “each” facility individually. The FISC appointed both legal and technical amici curiae to assist in its analysis of the complex surveillance technique.

The FISC ultimately determined that the proposed surveillance technique was consistent with the statutory terms and that there was probable cause to assess that the targets used each of the specified facilities. The FISC further ordered the Government to report on whether the technique resulted in the acquisition of non-target communications.

While redactions have been made to protect the classified and sensitive surveillance method discussed in this opinion, ODNI is making this opinion publicly available to the greatest extent practicable, as required by 50 U.S.C. § 1872.


FISC's March 2020 Opinion (released pursuant to 50 U.S.C. § 1872)