Filed Date: July 15, 2015
Closed Date: Nov. 6, 2015
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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.
On July 15, 2015, the Government submitted to the FISC certifications executed by the AG and the acting DNI under Section 702 of FISA. Each of these certifications generally proposed to continue acquisitions of intelligence information that were being conducted under the 2014 certifications. The 2014 certifications re-authorized certifications dating back to 2008.
Judge Hogan reviewed the proposed targeting and minimization procedures, which incorporated several modifications. A number of these modifications implemented recommendations made by the Privacy and Civil Liberties Oversight Board (PCLOB) in its 2014 report on the Section 702 program. These modifications to the targeting and minimization procedures included:
1. Codifying the existing requirement that NSA must make a particularized, fact-based assessment that each target is expected to possess, receive, or communicate foreign intelligence information and requiring documentation regarding this assessment;
2. Enhancing the protection for attorney-client communications in the NSA, CIA, and FBI minimization procedures;
3. Clarifying documentation or other requirements with respect to the querying of Section 702 information using the identifier of a United States person.
Before making the July 15, 2015 Submission, the Government had filed draft versions of the 2015 certifications on June 15, 2015. After reviewing those drafts, the FISC had concluded that the “matter was likely to present one or more novel or significant interpretations of the law,” and that it would likely require the FISC to appoint an amicus curiae. On August 13, 2015, the FISC (it is unclear which particular FISC judge appointed the amicus because the document is not available), utilizing a new provision of FISA enacted as part of the USA FREEDOM Act, appointed Amy Jeffress (a private lawyer, formerly counsel to Attorney General Eric Holder on national security matters) as amicus curiae to offer further analysis on two interpretations of law.
First, Ms. Jeffress was addressed whether the ability to query Section 702-acquired information using a United States person identifier was consistent with FISA and the Fourth Amendment. After extensive scrutiny and consideration of Ms. Jeffress’s views, Judge Hogan reaffirmed his analysis that the querying provisions, which permit the use of United States person identifiers to identify both foreign intelligence information and, in the case of the FBI, evidence of a crime, comply with both the statute and the Constitution. Because the procedures allow for queries seeking both foreign intelligence information and evidence of a crime, the Court focused in particular on the FBI’s query provisions. Judge Hogan disagreed with Jeffress’s argument that these procedures would allow searches unrelated to national security, holding that the foreign intelligence national security need not be the sole purpose of searches of § 702 as long as it is a significant purpose. He reasoned that because the FBI acquires its information from the NSA, the NSA’s prior particularized assessment of each target’s likelihood of receipt or possession of foreign intelligence was sufficient to eliminate the risk of searches yielding unrelated results. Ultimately, Judge Hogan determined that these provisions struck a reasonable balance between the privacy interests and the government’s national security interests.
Second, Ms. Jeffress was appointed to assess provisions in the minimization procedures designed to preserve for litigation purposes communications otherwise subject to destruction. The FISC had previously encouraged the government to consider revising these provisions to address preservation of information with more standardized rules, and the government responded by modifying provisions in the NSA and CIA minimization procedures which are included but redacted in the memo. Judge Hogan now held that these modified provisions met the requirements of § 1801(h) and struck a reasonable balance between retention limits in FISA, and the government’s need to comply with litigation obligations.
Additionally, in the course of the Fourth Amendment analysis the FISC conducts each time it reviews a Section 702 certification, Judge Hogan assessed the Government’s record of compliance with the targeting and minimization procedures in the prior year. As part of this review, he considered several compliance incidents, individually analyzing several incidents in detail.
Specifically, Judge Hogan described prior redacted incidents where FBI case agents knew that targets faced federal criminal charges but failed to establish required review teams with no role in the target’s prosecution. The FISC had previously responded to the high rate of noncompliance by requiring written assessments of training, guidance, and oversight regarding attorney client communications. Judge Hogan now concluded that he was satisfied with the government’s updated procedures.
Judge Hogan ultimately determined that his “overall assessment of the implementation of, and compliance with, the targeting and minimization procedures permits a finding that these procedures, as implemented, satisfy the applicable statutory requirements.”
Nina Cahill (2/14/2018)
Lisa Limb (4/16/2019)
Hogan, Thomas Francis (District of Columbia)
Hogan, Thomas Francis (District of Columbia)
Last updated Aug. 4, 2022, 3:02 a.m.Docket sheet not available via the Clearinghouse.
State / Territory: District of Columbia
Filing Date: July 15, 2015
Closing Date: Nov. 6, 2015
Case Ongoing: No
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).
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
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Prevailing Party: Plaintiff
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