Case: [Redacted caption] Gov't Ex Parte Submissions of Reauthorization Certification and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certification and Amended Certifications (April 2011) (702, Bates, J.)

For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

The FISA Amendments Act of 2008 included a new title giving the government the authority to monitor electronic communications of foreigners abroad. Section 702 permits the Attorney General and the Director of National Intelligence to jointly authorize the targeting of persons reasonably believed to be located outside the U.S., but it is limited to targeting non-U.S. persons. Once authorized, such acquisitions may last for periods of up to one year.

Under subsection 702(b), such an acquisition is subject to several limitations. The government may not target any person known at the time of acquisition to be located in the U.S. The government may not intentionally target a person reasonably believed to be located outside the U.S. if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the U.S. The government may not intentionally target a U.S. person reasonably believed to be located outside the U.S. The government may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the U.S. The government must conduct the acquisition in a manner consistent with the Fourth Amendment to the U.S. Constitution.

In June 2013, President Obama directed the Director of National Intelligence to declassify and make public as much information as possible about the government's collection of electronic data under Section 702 of FISA while being mindful of the need to protect sensitive classified intelligence activities and national security. As a result, on August 21, 2013, the Director of National Intelligence declassified and released redacted versions of such documents. The documents included three FISA Court opinions, the 2011 NSA minimization procedures applicable to collection under Section 702, and documents relating to Congressional oversight of Section 702.

On May 2, 2011, the government wrote a letter of "clarification" after applying for reauthorization of collection under Section 702. The letter described how certain "upstream collection" of internet communications included what are called "transactions." Upstream collection refers to collection by tapping the U.S. data pipeline, rather than by collecting from internet service providers and searches through for "selectors," like an email address or a keyword. Transactions "may contain a single, discrete communication, or multiple discrete communications, including communications that are neither to, from, nor about targeted facilities." These "transactions" sometimes turn out to include both purely domestic communications and communications involving U.S. persons not of foreign intelligence interest.

From May through September, the government provided answers to the court's questions about this form of collection. There were written submissions, meetings between the court staff and the Justice Department, and a hearing.

The government's June 1, 2011 submission was released in response to a 2016 Freedom of Information Act (FOIA) request from Charlie Savage, a national security reporter for The New York Times, in 2016. More information on that FOIA request is available in this Clearinghouse entry. The submission confirmed the clarification letter's statement that upstream data collection occasionally involved multi-communication transactions (MCTs), which, as the name implies, are almost communication incidents, like email chains, of related information collected as one unit. The submission noted that sometimes these collections incidentally include wholly domestic interactions, and that deleting the domestic communications destabilizes the data. A June 28 government submission from the same FOIA release argued that these collections should be viewed as incidental, not inadvertent, since the government intended to collect the MCTs. Finally, an August 16 government submission, released in the same FOIA request, studied the incidence of domestic communication in MCTs. The submission stated that 10 of the 5081 MCTs the government studied had a wholly domestic communication, and 224 of these were "indeterminate," which the government argued should be presumed to be foreign in an August 30 submission.

The Department of Justice released a redacted transcript of the September 7, 2011 hearing before FISC Judge John D. Bates. Judge Bates' questions during the hearing focused on the necessity of upstream communication collection, since they did not make up a large percentage of all of the communications collected under FISA. He also wanted more information on why the government recently purged some upstream communications, and it turned out that the purged communications were purely domestic in nature. Judge Bates focused on these flaws in data collection, and these ideas appeared to influence his decisions later.

A September 9, 2011 Department of Justice submission to the FISC confirmed that only nine percent of all NSA communications were gained through the upstream process. It also confirmed that a small percentage, 18,446 of the 140.9 million communications collected in six months, were purely domestic in nature and purged from the FISA data collection. A September 13 filing added that it was extremely unlikely that all data collected through the upstream program involved wholly domestic communications, and that the domestic information collected was a result of collections of several communications at once. These documents were publicized in 2016 as a result of the Charlie Savage FOIA litigation.

At the end of this process, Judge Bates approved most of what the government was seeking, but he also had problems he addressed in an opinion on October 3, 2011. The government released a redacted version of the opinion in response to a Freedom of Information Act request submitted by the Electronic Frontier Foundation.

In the opinion, Judge Bates found that that the vast majority of the collection was consistent with requirements of FISA and Fourth Amendment. However, he also found that part of the National Security Agency's collection under Section 702, specifically "upstream collection," was illegal and unconstitutional. Judge Bates also expressed concern about the accuracy of a series of government representations to the court. Judge Bates found that the NSA collection was, while not targeting Americans, capturing a large number—tens of thousands—of email communications per year that were either purely domestic or that involved U.S. persons whose communications were not of foreign intelligence value. Accordingly, Judge Bates ordered the deficiencies corrected within 30 days, or the government had to cease the particular form of collection in question.

On November 17, 2011, Judge Bates submitted several questions to the NSA, asking for clarification on the NSA's capacity to meet minimization requirements, since previous filings showed that the government could not meet several of these. The questions were released as part of the Charlie Savage FOIA litigation.

In response to the October 3 order, the government developed more stringent minimization procedures containing additional protections for information collected on U.S. persons as part of this discrete subset. These 2011 minimization procedures are available under the documents section.

After several motions to extend time, on November 30, 2011, Judge Bates approved the government's amended minimization procedures on the ground that they "adequately corrected the deficiencies" identified by the earlier opinion. Specifically, Judge Bates found that the new minimization procedures brought the NSA's upstream collection of Internet transactions containing multiple communications into line with 50 U.S.C. § 1881a(e), and the NSA's proposed targeting and minimization procedures into line with the Fourth Amendment.

On September 25, 2012, Judge Bates approved the measures that the government had taken with regards to the communications transactions acquired under the old minimization procedures. Judge Bates listed three primary steps that the government took to mitigate the problem. First, in late 2011, the government began applying certain parts of the amended minimization procedures to past acquisitions. It could not apply all of the amended procedures for technical reasons, but it did so retroactively where it could. Second, the government took the additional step of deleting all such upstream communications and data that were acquired prior to the implementation of the revised procedures approved by the FISC. Third, with regards to reports issued by the NSA that potentially relied on the transactions, the NSA was unable to confirm that all of those reports raised no FISA issues, so the NSA agreed to inform the reports' recipients that they should not use or share any information included in the reports without getting approval first.