Release of the 22nd Joint Assessment of Section 702 Compliance

ODNI Releases 22nd Joint Assessment of Section 702 Compliance

March 14, 2022

The Office of the Director of National Intelligence (ODNI), in consultation with the Department of Justice (DoJ), today released, in redacted form, the 22nd Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, submitted by the Attorney General and the Director of National Intelligence (DNI) (“Joint Assessment”). This Joint Assessment covers the timeframe of 01 December 2018 through 31 May 2019. The DNI released this semiannual assessment proactively, in keeping with the Principles of Intelligence Transparency for the Intelligence Community.

About the Assessments

The Foreign Intelligence Surveillance Act (FISA) Amendments of 2008 requires the Attorney General and the DNI to assess compliance with Section 702 procedures over each six-month period and to submit their assessments to the Foreign Intelligence Surveillance Court (FISC) and relevant congressional committees, which they do in the Joint Assessments. A joint team of experts (the joint oversight team) from DoJ and ODNI conduct these assessments evaluating how the agencies responsible for implementing Section 702 (National Security Agency [NSA], Federal Bureau of Investigation [FBI], Central Intelligence Agency, and National Counterterrorism Center) implement their authority under Section 702.

The Joint Assesments describe the extensive measures the U.S. Government undertakes to:

  • Ensure compliance with FISC-approved targeting, minimization, and query procedures for Section 702;
  • Accurately identify, record, and correct errors;
  • Take responsive actions to remove any erroneously obtained data; and
  • Mitigate the chances that mistakes will recur.

The Joint Assessments provide an overall compliance incident rate that includes all categories of incidents from all of the agencies responsible for implementing Section 702. However, the overall compliance incident rate is an imperfect proxy insofar as the rate compares the total number of compliance incidents (regardless of their cause) to the average number of tasked facilities (which may be unrelated to the number of certain types of compliance incidents, such as the number of times the acquired data was disseminated or queried improperly). The assessment, therefore, also provides additional metrics and detailed narratives to assess compliance.

Key Findings of the 22nd Joint Assessment

As detailed in the 22nd Joint Assessment, the joint oversight team found that the agencies continued to implement the procedures in a manner that reflected a focused and concerted effort by Intelligence Community (IC) personnel to comply with the requirements of Section 702. The team assessed compliance trends, including compliance incident rates; evaluated the impact of the types of incidents that occurred; and considered the agencies’ preventative and remedial compliance actions.

For this reporting period, the overall compliance incident rate was 6.91 percent, a significant decrease from the prior period (33.54 percent). While the overall compliance incident rate considers all identified errors (for targeting, minimization, and querying) of all the agencies implementing Section 702, the vast majority of compliance incidents were related to a single type of FBI query error. Although the number of these FBI query errors decreased significantly from the previous reporting period, they continued to account for a substantial number of compliance incidents. Specifically, for this reporting period, the FBI query error rate was 13.71 percent, a decrease from the prior period (23.94 percent). To provide insight on targeting compliance, the assessment also included NSA’s compliance incident rate for targeting decisions which was 0.15 percent for this reporting period (compared to 0.20 percent for the prior period).

The FISC discussed certain instances of the FBI’s noncompliant queries in its 2018, 2019, and 2020 Section 702 opinions. In the 2018 opinion, the FISC found that the FBI’s querying procedures were not consistent with Section 702 or the Fourth Amendment in part because they did not require adequate documentation of justifications for U.S. person queries. In response to the Court’s opinions, the FBI made system modifications necessary to meet query recordkeeping and documentation requirements and provided training on these new modifications. The previously released December 2019 and November 2020 FISC opinions discussed those measures. While the 22nd Joint Assessment also discussed those measures, as well as additional remedial measures that the FBI implemented in 2021, the reporting period covered (and hence the incidents discussed) in the 22nd Joint Assessment occurred before the FBI implemented those measures.

Additional Information

The ODNI has previously released a number of prior joint assessments, which may be found on IC on the Record and

Below is today’s release, in redacted form:

22nd Joint Assessment (dated August 2021): reporting period December 1, 2018 - May 31, 2019