April 26, 2021
Today the Office of the Director of National Intelligence, in consultation with the Department of Justice, releases documents related to the Foreign Intelligence Surveillance Court’s (FISC) approval of the 2020 Certifications under Section 702 of the Foreign Intelligence Surveillance Act (FISA).
On November 18, 2020, the FISC issued a classified Memorandum Opinion and Order approving the 2020 Certifications and the associated targeting, minimization, and querying procedures (linked below). In the Memorandum Opinion, the Court examined the proposed procedures, both as written and in the context of how prior procedures had been implemented by the government, and found that the proposed procedures satisfy the requirements of FISA and the Fourth Amendment.
One focus of the November 2020 opinion was on the Federal Bureau of Investigation’s (FBI) queries of unminimized Section 702-acquired information. The Court took note that since its most recent opinion on Section 702, FBI had implemented system changes to comply with recordkeeping and documentation requirements for such queries and had deployed mandatory training for all FBI personnel with access to unminimized Section 702-aquired information. The Court, however, stated it “continues to be concerned about FBI querying practices involving U.S.-person query terms, including (1) application of the substantive standard for conducting queries; (2) queries that are designed to retrieve evidence of crime that is not foreign-intelligence information; and (3) recordkeeping and documentation requirements.” See p. 39. The Court examined specific compliance incidents (see pp. 39 – 44) and evaluated the manner in which FBI implemented various changes to systems (see pp. 44 – 52). The Court noted that a majority of these query incidents occurred prior to FBI implementing system changes and deploying mandatory training intended to address these compliance matters, and that the COVID-19 pandemic had subsequently severely limited the ability of the government to monitor the FBI’s compliance once these system and training changes had been put in place. See pp. 41, 43, 49-50. As a result, the Court concluded that the improper queries do not undermine the Court’s determination that FBI’s querying and minimization procedures meet the applicable statutory and Fourth Amendment requirements, but stated that it would “continue to closely monitor the government’s reporting in order to evaluate whether the querying procedures are being implemented in a manner consistent with the statute and the Fourth Amendment.” See pp. 41, 44, and 49-50. The Court also imposed new reporting obligations on the government to facilitate its oversight. See pp. 51, 63, and 66.
In addition to releasing the FISC opinion, ODNI is releasing the targeting, minimization, and querying procedures filed with the 2020 Certifications. Links to these documents are provided below. The documents are also posted in full-text searchable format on Intel.gov.
(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.
For additional background information, please refer to the 2020 Statistical Transparency Report Regarding Use of National Security Authorities for CY2019 posted on Intel.gov and IC on the Record.