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.)

[Redacted] | Foreign Intelligence Surveillance Court

Filed Date: 2014

Closed Date: 2014

Clearinghouse coding complete

Case Summary

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 su…

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 NS-DC-0072 in this Clearinghouse.

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.

Summary Authors

Lisa Limb (2/8/2018)

People


Judge(s)

Hogan, Thomas Francis (District of Columbia)

Attorneys(s) for Plaintiff

Carlin, John P. (District of Columbia)

Expert/Monitor/Master

Comey, James B. (New York)

Holder, Eric H. Jr. (District of Columbia)

Judge(s)

Hogan, Thomas Francis (District of Columbia)

Attorneys(s) for Plaintiff

Carlin, John P. (District of Columbia)

Expert/Monitor/Master

Comey, James B. (New York)

Holder, Eric H. Jr. (District of Columbia)

Documents in the Clearinghouse

Document

14-02014

Letter re: Notice of NSA's Assessment of Purge Practices and Discovery of Incomplete Pages

March 18, 2014

March 18, 2014

Monitor/Expert/Receiver Report

14-02014

Letter re: Supplemental Notice of NSA's Assessment of Purge Practices and Discovery of Incomplete Pages

May 29, 2014

May 29, 2014

Findings Letter/Report

14-02014

Affidavit of Richard H. Ledgett, Jr., Acting Director, National Security Agency

July 23, 2014

July 23, 2014

Declaration/Affidavit

14-02014

Minimization Procedures Used by the Federal Bureau of Investigation in Connections with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA

July 24, 2014

July 24, 2014

Statute/Ordinance/Regulation

14-02014

Minimization Procedures Used by the Central Intelligence Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of FISA

July 24, 2014

July 24, 2014

Statute/Ordinance/Regulation

14-02014

DNI/AG 702(g) Certification

July 25, 2014

July 25, 2014

Pleading / Motion / Brief

14-02014

Letter re: Notice Regarding NSA Purge Practices

July 25, 2014

July 25, 2014

Findings Letter/Report

14-02014

Procedures Used by the Federal Bureau of Investigation for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of FISA [ENTIRE DOC REDACT]

July 28, 2014

July 28, 2014

Other

14-02014

Affidavit of the Director of the Central Intelligence Agency

July 28, 2014

July 28, 2014

Declaration/Affidavit

14-02014

Exhibit F [ENTIRE DOC REDACTED]

July 28, 2014

July 28, 2014

Other

Resources

Docket

Last updated May 29, 2022, 3:07 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Court

Foreign Intelligence Surveillance Act—Foreign Targeting (702, 703, 704)

Key Dates

Filing Date: 2014

Closing Date: 2014

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiffs are the Attorney General (AG), through the Department of Justice (DOJ), and the Director of National Intelligence (DNI), through the Office of the Director of National Intelligence (ODNI).

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c

Constitutional Clause(s):

Freedom of speech/association

Unreasonable search and seizure

Special Case Type(s):

Warrant or subpoena application

Availably Documents:

Non-settlement Outcome

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Warrant/Order allowing surveillance

Source of Relief:

Litigation

Order Duration: 2014 - 2014

Content of Injunction:

Monitoring

Recordkeeping

Reporting

Required disclosure

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues