ODNI Releases All Remaining FISA Decisions Determined to Contain Significant Construction of Law
August 12, 2022
Today, the Office of the Director of National Intelligence (ODNI), in consultation with the Department of Justice (DOJ), is releasing appropriately redacted versions of all remaining historical opinions and orders of the Foreign Intelligence Surveillance Court (FISC) or Foreign Intelligence Surveillance Court of Review (FISC-R) that have been previously determined to contain significant constructions of law.
Over the last nine years, the Intelligence Community and DOJ have worked together to release to the public significant opinions of the FISC and FISC-R. These efforts resulted in the public release of dozens of court opinions and orders and thousands of pages of released materials, all of which are available on Intel.gov and IContheRecord. In 2015, Congress enacted the USA FREEDOM Act, which requires the Director of National Intelligence to continue to conduct a declassification review of new opinions or orders of the FISC and FISC-R that contain “a significant construction or interpretation of any provision of law,” and “make publicly available to the greatest extent practicable” such opinions or orders (50 U.S.C. § 1872(a)).
In addition to fully complying with this law, ODNI has responded to Freedom of Information Act requests and conducted additional proactive disclosures with respect to FISC and FISC-R opinions that predate the 2015 USA FREEDOM Act. These efforts focused on opinions and orders issued since 2003 that DOJ identified as containing a significant interpretation of law and had also already been provided in classified form to Congress, pursuant to 50 U.S.C. § 1871. As a result, by January 2018, ODNI had released to the public redacted versions of all but seven of these significant opinions or orders. See, for example, releases here and here.
Following an interagency review, and consistent with the Principles of Intelligence Transparency, ODNI determined that redacted versions of all seven remaining opinions and orders could be released. The seven opinions or orders are as follows:
- Document 1—FISC Title I Primary Order
This FISC order approved a new, classified foreign intelligence surveillance technique targeting a foreign power.
- Document 2—FISA Title I FISC Supplemental Order
In this order, the FISC required the DOJ to provide a supplemental briefing clarifying the Government’s interpretation of which portion of the multi-part definition of “electronic surveillance” the Government assessed applied to a classified surveillance technique.
- Document 3—FISA Title I FISC Memorandum Opinion and Order
In this opinion and order, the FISC approved a modification to the Federal Bureau of Investigation’s (FBI) standard minimization procedures to permit the National Counterterrorism Center (NCTC) to access an FBI system that contained FISA information in a manner consistent with NCTC’s own minimization procedures. Unlike the other documents in this release which had been previously withheld due to national security concerns, this opinion was not previously released due to an administrative error.
- Document—4 FISA Title I FISC Primary Order and Document 5—FISA Title I FISC Amendment to Primary Order
These are two orders associated with a FISC opinion previously released on 22 August 2018. Although previously provided to Congress with that opinion, the FISC’s significant construction of law was made in the previously released opinion, not these orders.
- Document 6—FISA Title V FISC Supplemental Opinion
In this supplemental opinion, the FISC determined that International Mobile Equipment Identifier numbers and International Mobile Subscriber Identifier numbers could be utilized to initiate contact chaining in a previous intelligence program involving the collection of call detail records. This collection program was terminated after the passage of the USA FREEDOM Act.
- Document 7—FISA Title V FISC Order
This FISC order approved the ongoing collection of certain business records to protect against international terrorism.