Release of Documents Related to the 2023 FISA Section 702 Certifications

Release of Documents Related to the 2023 FISA Section 702 Certifications

July 21, 2023

Today, the Office of the Director National Intelligence (ODNI), in consultation with the Department of Justice (DOJ), is publicly releasing a 2023 Foreign Intelligence Surveillance Court (FISC) opinion, with redactions, which approves the annual certifications made by the Director of National Intelligence (DNI) and the Attorney General (AG) pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the associated targeting, minimization, and querying procedures. The 2023 FISC Opinion states that the Federal Bureau of Investigation’s (FBI’s) recent implementation of remedial measures has improved the FBI’s compliance with the query standard.

Under FISA Section 702, the Government may annually submit one or more certifications to the FISC which specify the categories of foreign intelligence that the Intelligence Community (IC) can collect using FISA Section 702. With any submitted certifications, the Government must also submit targeting, minimization, and querying procedures, which ensure that FISA Section 702 is used only to acquire foreign intelligence information from foreign persons located outside the United States; safeguard any U.S. person information incidentally acquired; and govern the querying of unminimized information that is lawfully collected, respectively. The Government submitted those documents, as well as supporting affidavits from the Directors of the National Security Agency (NSA), FBI, Central Intelligence Agency (CIA), and National Counterterrorism Center (NCTC), in March 2023. The FISC approved the certifications in the above-referenced Memorandum Opinion and Order, issued on April 11, 2023.

To provide the public with additional information about the Government’s use of Section 702, and pursuant to public interest declassification under section 3.1(d) of Executive Order 13526, the DNI has declassified that there are three Certifications under Section 702, covering the following categories of foreign intelligence: (1) foreign governments and related entities, (2) counterterrorism, and (3) combatting proliferation. The DNI also declassified the fact that NSA uses FISA Section 702 to support the federal government’s vetting, for counterterrorism purposes, of non-U.S. persons who are being processed for travel to the United States or a benefit under U.S. immigration laws.

 The 2023 FISC Opinion addresses several other issues.

• FBI Compliance: The 2023 FISC Opinion compares compliance incidents during the most recent certification period with preceding periods, assessing the strength of the recent remedial measures FBI implemented to bolster compliance with its querying procedures. While the FISC notes that there were reported errors during the recent certification period, the 2023 FISC Opinion and Order highlights the remedial measures made within FBI systems and updated training, guidance, and clarifications to FBI’s querying procedures the FBI implemented to address its query compliance issues before ultimately concluding that “there is reason to believe that the FBI has been doing a better job in applying the querying standard.” See id. at 87. Overall, the FISC calculates FBI’s rate of noncompliance with the FISA querying standard during this period at approximately 1.8%, see id. at 85, and the Court ultimately approves FBI’s querying procedures, “[g]iven recent indications that FBI is improving its implementation of Section 702 querying requirements.” See id. at 93.

• Modification to NSA’s procedures: The 2023 FISC opinion also addresses NSA’s querying and minimization procedures, which include a modification concerning travel or immigration vetting in order to determine if non-U.S. person individuals have connections to international terrorism. The FISC concluded that the proposed modifications to NSA’s procedures were consistent with both the statutory requirements and the Fourth Amendment. See Op. at 43–67 (consistent with FISA), 76–81 (consistent with the Fourth Amendment).

• Processing: The FISC also approved separate modifications to NSA’s minimization and querying procedures that clarified “processing” and further distinguish processing from “querying.” See id. at 29-43 (consistent with the statute), 75–76 (consistent with the Fourth Amendment). “Processing” of data is an action that converts information into an intelligible form or organizes information by, for example, labeling or indexing data, prior to an analyst conducting a query. In many cases, processing is a necessary step before an analyst can even run a query against collected data.

Additional Information

The documents are posted in full-text searchable format on intel.gov.

FISC 2023 FISA § 702 Certifications Opinion, April 11, 2023

2023 Targeting Procedures

(released pursuant to the IC’s Principles of Transparency)

• FBI’s 2023 FISA § 702 Targeting Procedures
• NSA’s 2023 FISA § 702 Targeting Procedures

2023 Minimization Procedures

(released pursuant to 50 U.S.C. § 1881a(e))

• CIA’s 2023 FISA § 702 Minimization Procedures
• FBI’s 2023 FISA § 702 Minimization Procedures
• NCTC’s 2023 FISA § 702 Minimization Procedures
• NSA’s 2023 FISA § 702 Minimization Procedures
• NSA’s 2023 FISA § 702 Amended Minimization Procedures

2023 Querying Procedures

(released pursuant to the IC’s Principles of Transparency)

• CIA’s 2023 FISA § 702 Querying Procedures
• FBI’s 2023 FISA § 702 Querying Procedures
• NCTC’s 2023 FISA § 702 Querying Procedures
• NSA’s 2023 FISA § 702 Querying Procedures

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.