Release of Documents Concerning Activities under the Foreign Intelligence Surveillance Act (Last Updated 9/29/15)

Yesterday, the Intelligence Community released several Foreign Intelligence Surveillance Court documents related to surveillance activities undertaken pursuant to the Foreign Intelligence Surveillance Act. 

Sharing of Unminimized Information Collected Pursuant to Titles I and III of FISA

Several documents relate to the sharing of information collected by the Federal Bureau of Investigation pursuant to Titles I and III of the FISA.  In general, Titles I and III permit the FBI to conduct electronic surveillance and physical searches to acquire the contents of communications where, upon application, the FISC has determined that probable cause exists to believe that a target is a foreign power or an agent of a foreign power, and that each facility (e.g., a telephone number or e-mail account) or place at which the electronic surveillance or physical search is directed is being used, or about to be used, by a foreign power or an agent of a foreign power. 

Originally, the FBI could only share the information that it collected pursuant to Titles I and III with the rest of the Intelligence Community after first reviewing the “raw” (i.e., unminimized) information it collected, determining that the information was appropriate for retention and dissemination, and then minimizing that information in accordance with approved minimization procedures.  In short, the FBI could not share raw information with the Intelligence Community. 

Following the attacks of September 11, 2001, however, the government identified this restriction as a significant gap in its counterterrorism intelligence capabilities.  Specifically, this limitation prevented other Intelligence Community agencies from using their own expertise to analyze and evaluate raw counterterrorism information in the first instance.  Thus, rather than relying solely on the FBI to identify and disseminate counterterrorism information to its partner agencies in the Intelligence Community, the government sought FISC approval to permit certain agencies to receive the raw counterterrorism information collected by the FBI and analyze, evaluate, and use this information in compliance with their own FISC-approved minimization procedures.  

On July 22, 2002, upon the government’s application, the FISC authorized the CIA and the National Security Agency to receive raw counterterrorism information collected by the FBI pursuant to Titles I and III provided that those two agencies handled, retained, and disseminated such information pursuant to FISC-approved minimization procedures.  In 2012, the FISC further authorized the FBI to share this raw counterterrorism information with the National Counterterrorism Center provided that the NCTC likewise handled, retained, and disseminated such information pursuant to FISC-approved minimization procedures. 

The documents released yesterday include the application and orders authorizing this information sharing and the minimization procedures governing how the CIA, NSA, and NCTC use this information.

Motion for Amended Minimization Procedures May 10, 2002

FISC Order July 22, 2002

Motion for Amendments to Standard Minimization Procedures April 23, 2012

FISC Opinion and Order May 18, 2012

Motion for Continuation and Order May 14, 2004 (added June 1, 2015)

NCTC Minimization Procedures (added September 29, 2015)

Collection Activities Under Section 702 of the FISA

Section 702 of the FISA, which authorizes the targeting of non-U.S. persons outside the United States for foreign intelligence purposes, incorporates substantial protections to ensure that surveillance is properly targeted and that the use of collected information is properly limited.  Section 702 authorizations must be made by the AG and DNI in a written certification, accompanied by targeting and minimization procedures, establishing how the given authorization meets Section 702’s requirements.  The FISC must then approve this certification and the use of the accompanying procedures. 

The documents released yesterday include the first FISC opinion regarding Section 702.  The FISC reviewed the government’s proposed Section 702 collection program and found that the foreign intelligence scope and privacy protections of this program, as embodied in the written certification, targeting procedures, and minimization procedures, complied with both Section 702 of the FISA and the requirements of the Fourth Amendment.
FISC Opinion September 4, 2008

FISC Order September 4, 2008

Notice of Clarification and Correction 2 September 2008 (Added 3/6/15)

Government’s Preliminary Response 26 August 2008 (Added 3/6/15)

Government Submission to FISC 28 August 2008 (Added 3/6/15)

Foreign Content Collection Activities Predating Section 702 of the FISA

As has been described in an earlier IC on the Record post, shortly after the attacks of September 11, 2001, President Bush authorized the Secretary of Defense to employ the capabilities of the Department of Defense, including the NSA, to collect certain foreign intelligence by electronic surveillance to detect and prevent acts of terrorism within the United States. 

This collection program ended in January 2007 when the government transitioned it to FISA authority under orders of the FISC.  In general, the FISC issued orders permitting the government to target for collection certain international communications into or out of the United States where there was probable cause to believe that one of the parties to the communication was a member or agent of certain targeted foreign powers.  The documents released today include the minimization procedures used by the CIA and NSA for this information. 

CIA Minimization Procedures