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 (August 2014) (702, Hogan, J.)

Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. §§ 1881a et seq., permits the Attorney General (AG) and the Director of National Intelligence (DNI) to conduct foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad. The government need not establish probable cause that the target of electronic surveillance is a foreign power or agent of a foreign power, nor must the government specify the nature and location of the facilities or places that surveillance will occur. Communications of U.S. citizens and residents are frequently collected "incidentally" if those U.S. persons are communicating with or about a targeted foreigner.

Section 702 requires that the AG, through the Department of Justice (DOJ), and DNI, through the Office of the Director of National Intelligence (ODNI), submit annual “certifications” that define the categories of foreign actors that may be appropriately targeted. By law, these certifications must include specific targeting and minimization procedures adopted by the AG in consultation with the DNI. These certifications must be approved by the Foreign Intelligence Surveillance Court (FISC) before Section 702 surveillance may be conducted. For a more in-depth overview of the certification process, see [In re DNI/AG 702(i) Certification 2008].

In July 28, 2014, DOJ and ODNI submitted their annual certifications for 2014. On August 26, 2014, FISC Judge Thomas F. Hogan approved the government’s annual certifications for 2014. The 2014 certifications generally proposed to continue acquisitions of foreign intelligence information that were being conducted at that time under certifications made in 2013, which had been approved by the FISC on December 13, 2013. The FBI Minimization Procedures included new provisions respecting the transmittal of information to the National Center for Missing and Exploited Children (NCMEC), the dissemination of information to mitigate serious harm, preservation of information for litigation purposes by the FBI.

The government reported several compliance and implementation issues. Under the NSA Minimization Procedures, the NSA is required to discontinue acquisition for a facility if it determines that the user of the facility is in the United States. However, given the high rate of false positives (i.e., not indicative of access of the facility by a user inside the United States), Judge Hogan held that the NSA’s current practices regarding facility acquisitions complied with the statutory requirements of 50 U.S.C. §1881a(d)(1)(A). Judge Hogan also addressed issues regarding the FBI’s non-compliance with attorney-client minimization procedures. Although FISA’s definition of minimization procedures do not, by its terms, afford any special protection to communications subject to the attorney-client privilege, the minimization procedures submitted by the Government contained specific rules for handling attorney-client communications. Specifically, the FBI is required to establish a separate review team, who have no role in the prosecution of the charged criminal matter, to conduct the initial review of a target’s communications.

Since February 2014, the FISC had received notice of instances in which the responsible FBI case agent knew that a person targeted under Section 702 faced federal criminal charges but did not establish the required review team. Judge Hogan held that because the circumstances triggering the obligation to establish a review team arose infrequently in the context of Section 702 acquisitions, he did not believe that the instances of non-compliance prevented a finding that the minimization procedures complied with statutory requirements. However, Judge Hogan held that he intended to further monitor compliance with this provision of the FBI Minimization Procedures closely and directed the Government to fully report on additional instances of non-compliance.

In short, Judge Hogan found that the reported compliance issues did not preclude a finding that the NSA, FBI, and CIA’s targeting and minimization procedures complied with the statutory requirements. Ultimately, Judge Hogan found that, pursuant to 50 U.S.C. § 1881a(i)(3)(A), the certifications contained the requisite statutory elements and that the targeting and minimization procedures were consistent with FISA and Fourth Amendment requirements.