May 19, 2023
Today, in accordance with 50 U.S.C. § 1872 of the Foreign Intelligence Surveillance Act (FISA), the Office of the Director National Intelligence (ODNI), in consultation with the Department of Justice (DOJ), is making publicly available, with significant redactions to protect sources and methods, two Foreign Intelligence Surveillance Court (FISC) decisions that include “significant construction[s] or interpretation[s] of any provision of law.” We discuss each decision below.
FBI’s 2021 FISA § 702 Targeting Procedures
The first decision being made publicly available in redacted form is a 21 April 2022 Memorandum Opinion and Order, which addresses the Government’s 2021 Certifications under Section 702 of the FISA. We are also releasing the associated targeting, minimization, and querying procedures approved by the FISC (linked below).
Under FISA Section 702, the Government must submit to the FISC certifications and targeting, minimization, and querying procedures on an annual basis. The Government submitted those documents, as well as supporting affidavits from the Directors of the National Security Agency (NSA), Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), and National Counterterrorism Center (NCTC) in October 2021, before they were set to expire on 18 November 2021. The FISC issued the above-referenced Memorandum Opinion and Order approving the 2021 Certifications on 21 April 2022. In the intervening period, the FISC twice extended its review of the 2021 Certifications “as necessary for good cause in a manner consistent with national security,” 50 U.S.C §1881a(k)(2), thereby enabling the 2020 Certifications to remain in effect for an additional several months. Specifically, the FISC issued its first extension to review the 2021 Certifications on 28 October 2021, in order to allow the Government time to submit additional information concerning FBI query violations, and it issued its second extension to review the 2021 Certifications on 7 February 2022, in order to allow for further submissions from the amicus curiae and the Government regarding a sensitive technique described below, and from the Government concerning FBI query matters. On 18 March 2022, the Government submitted amendments to the 2021 Certifications to address the sensitive technique.
One focus of the 2021 Cert Opinion was the FISC’s analysis of the NSA’s requested authorization to use a highly sensitive technique pursuant to Section 702. In conducting the review required by 50 U.S.C. § 1872, the Director of National Intelligence (DNI), in consultation with the Attorney General, determined based on an IC coordinated assessment regarding the implication of disclosing the details of this highly sensitive technique that the FISC’s analysis of NSA’s requested authorization to use this highly sensitive technique—the majority of which begins on page 81 of the opinion—must remain classified to protect sources and methods. Specifically, the information that has been redacted reveals the implementation details of this highly sensitive technique, as well as the specific target(s) against whom NSA intends to apply this technique. Nonetheless, in order to make information from the Memorandum Opinion and Order publicly available to the greatest extent practicable, and pursuant to section 3.1(d) of Executive Order 13526 with this statement the DNI is declassifying that NSA was authorized to apply a sensitive technique on overseas targets in a manner that is reasonably expected to result in no incidental collection of U.S. Persons’ communications.
We further note that the FISC only approved this highly sensitive technique after considering arguments presented by an amicus curiae and reviewing the classified details of the proposed activity. In doing so, the FISC specifically considered the form of the acquisition and whether the intelligence information could be obtained from or with the assistance of an electronic communication service provider, as required by the FISA statute. Further, as noted above, during the FISC’s review of the sensitive technique, the Government amended the 2021 Certifications to make additional modifications to NSA’s Section 702 targeting and minimization procedures to address issues raised by the FISC and the amicus curiae regarding this technique. Classified versions of the approved opinion, certifications, and procedures, including a description of the sensitive technique, have been provided to Congress and the Privacy and Civil Liberties Oversight Board (PCLOB), along with the basis for the redactions in the publicly released versions of these documents.
Another notable aspect of the Memorandum Opinion and Order is the FISC’s examination of the FBI’s querying of U.S. person information, which begins on page 22. The Opinion provides an in-depth examination of FBI’s query compliance incidents. All of these compliance incidents occurred prior to FBI deploying a series of remedial measures beginning in the summer of 2021 and through 2022. As a result, these compliance incidents do not reflect FBI’s querying practices subsequent to the full deployment of the remedial measures. The Opinion then details the FBI remedial measures made within FBI systems, as well as updated training, guidance, and clarifications to FBI’s querying procedures that were implemented to address the query compliance issues. The FISC ultimately found that based on the “the amendments to the FBI’s querying procedures and the substantial efforts to improve FBI querying practices,” including system changes, improved training, and oversight, FBI’s querying procedures, as implemented, satisfied the Fourth Amendment and applicable requirements in FISA.
A classified version of this opinion, including a description of the new technique, has been provided to Congress and the Privacy and Civil Liberties Oversight Board (PCLOB), along with the basis for the redactions in the publicly released version of this opinion. As noted above, in addition to releasing the Memorandum Opinion and Order, ODNI is releasing the targeting, minimization, and querying procedures filed with the 2021 Certifications. Links to these documents are provided below. The documents are also posted in full-text searchable format on Intel.gov.
September 27, 2021 FISC Physical Search Opinion
The second decision being made publicly available in redacted form is a 27 September 2021 Opinion and Supplemental Order approving two Government applications for the FBI to conduct physical searches of non-U.S. person targets under Title III of FISA.
As noted in the Opinion, in its applications, the Government proposed to use a new technique for the first time under FISA. The DNI determined, again based on an IC coordinated assessment regarding the implications of disclosing specifics associated with this technique, that it was necessary to redact such details to protect sources and methods and consequently the technique at issue remains redacted in the Opinion being released. We note, however, that, to consider the novel issue, the FISC appointed and accepted the assistance of amici curiae.
The FISC ordered amici and the Government to address four specific legal questions: (1) whether the proposed uses of the technique constitute physical searches within the meaning of 50 U.S.C. § 1821(5), and, in particular, whether the technique will be deployed “under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes”; (2) whether the applications establish probable cause to believe that the “premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power,” as required by § 1824(a)(2)(B) of FISA; (3) whether the proposed warrants meet particularity requirements under the Fourth Amendment to the Constitution; and (4) whether the proposed warrants meet the specification requirement imposed by § 1824(c)(1)(B), i.e., that the order must specify “the nature and location of each of the premises or property to be searched.” The Government and amici submitted their views to the Court through written briefs and oral argument.
After reviewing the substantial materials provided by the Government and amici, the FISC ultimately concluded that, with modifications, it could approve the Government’s proposed physical search orders as consistent with the requirements of FISA and the Fourth Amendment. The FISC found that it was proper for the Government to submit its applications under Title III of FISA, in part because there was a sufficient basis to conclude that the users involved had a reasonable expectation of privacy. The Court also found that there was “little difficulty finding probable cause to believe that the intended targets are agents of the specified foreign powers,” and that it could find probable cause to believe that the premises or property to be searched was owned, used, or possessed by those agents, but only by imposing further limits on the information to be acquired. The FISC also ordered the FBI to destroy non-target data acquired through the requested physical searches and report such destruction to the FISC.
A classified version of this opinion, including a description of the new technique, has been provided to Congress and the Privacy and Civil Liberties Oversight Board (PCLOB), along with the basis for the redactions in the publicly released version of this opinion.
FISC 2021 FISA § 702 Certification Opinion, April 21, 2022
(released pursuant to the IC’s Principles of Transparency)
(released pursuant to 50 U.S.C. § 1881a(e))
(released pursuant to the IC’s Principles of Transparency)
Background on Section 702
Section 702 was enacted as part of the FISA Amendments Act of 2008 (FAA) and most recently reauthorized by the FISA Amendments Reauthorization Act of 2017. Section 702 permits the Attorney General and the DNI to jointly authorize, through certifications, the targeting of (i) non-U.S. persons (ii) who are reasonably believed to be located outside the United States (iii) to acquire foreign intelligence information. These certifications are accompanied by targeting procedures, minimization procedures, and querying procedures that are each designed to ensure that the Government’s collection is appropriately targeted against non-United States persons located overseas who may possess or are likely to communicate foreign intelligence information and that any such collection is appropriately handled in a manner that protects privacy and civil liberties.
Under Section 702, the FISC reviews the certifications and accompanying documents to ensure that they meet all the requirements of Section 702 and are consistent with the Fourth Amendment. The Court’s review is not limited to the procedures as written, but also includes an examination of how the procedures have been and will be implemented. Accordingly, as part of its review, the FISC considers the compliance incidents reported to it by the Government through notices and reports.
Additional Information about FISA Section 702 and how the Intelligence Community uses its surveillance authorities may be found in the FISA Resource Library.