ODNI Releases 23rd Joint Assessment of Section 702 Compliance


ODNI Releases 23rd Joint Assessment of Section 702 Compliance

 

July 18, 2022

The Office of the Director of National Intelligence (ODNI), in consultation with the Department of Justice (DoJ), today released, in redacted form, the 23rd Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“Joint Assessment”), submitted by the Attorney General and the Director of National Intelligence (DNI).  This Joint Assessment covers the timeframe of 01 June 2019 through 30 November 2019.  The DNI released this semiannual assessment proactively, in keeping with the Principles of Intelligence Transparency for the Intelligence Community

About the Joint Assessments

The Foreign Intelligence Surveillance Act (FISA) Amendments Act 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 from DoJ and ODNI (the “joint oversight team") 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 Assessments 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 23rd Joint Assessment

As detailed in the 23rd 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’ preventive and remedial compliance actions.

For this reporting period, the overall compliance incident rate was 20.28 percent, a significant increase from the immediately preceding period (6.91 percent) while still remaining below a 2018 high of 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 during this period continued to be related to a single type of FBI query error.  The number of these FBI query errors increased significantly from the previous reporting period, accounting for a substantial number of compliance incidents.  Specifically, for this reporting period, the FBI query error rate was 36.59 percent, an increase from the prior two reporting periods (13.71 in the 22nd Joint Assessment and 23.94 percent in the 21st Joint Assessment).  These incidents, as well as FBI’s subsequent remedial measures, are discussed in greater detail later in this assessment.  To provide insight on targeting compliance, the assessment also included NSA’s compliance incident rate for targeting decisions, which was 0.14 percent for this reporting period (compared to 0.15 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 23rd Joint Assessment also discussed those measures, as well as additional remedial measures that the FBI implemented in 2021, the reporting period covered (and thus the incidents discussed) in the 23rd Joint Assessment occurred before the FBI implemented those measures.

Additional Information

ODNI previously released several joint assessments, which are available on IC on the Record and Intel.gov.


23rd Joint Assessment- Dated September 2021: Reporting Period 01 June 2019 – 30 November 2019