Case: [Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications (September 2016) (702, Collyer, J.)

[Redacted] | Foreign Intelligence Surveillance Court

Filed Date: Sept. 17, 2016

Closed Date: April 26, 2017

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 sur…

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 September 2016, DOJ and ODNI submitted their annual certifications for 2016. In October 2016, however, DOJ and ODNI reportedly received information about certain Section 702 compliance incidents, and the DOJ and ODNI reported this additional information to the FISC. The NSA also self-reported the information to oversight bodies, as required by law. The ODNI claimed that these compliance incidents involved the NSA’s inadvertent use of U.S.-person identifiers as search terms to query the NSA’s database of “upstream” internet collection, acquired pursuant to Section 702.

Historically, the NSA has been authorized to acquire communications to, from, or “about” a Section 702 target through its upstream internet collection. In other words, if Bob was considered a Section 702 target, then the NSA could acquire communications to Bob, from Bob, or communications that discuss Bob. But because “about” collection might not involve communication with a non-U.S. person located abroad, this collection permitted the NSA to collect tens of thousands of purely domestic emails. (In fact, in 2011, the FISC held that “about” collection was unconstitutional without more procedural safeguards. See NS-DC-0074 in this Clearinghouse.) Because FISA only permits surveillance targeting the communications of non-U.S. persons located abroad, NSA analysts are not permitted to use U.S. persons as search terms to query “about” communications.

Generally, the FISC is required to complete its review of the annual Section 702 certifications within thirty days of submission. But after DOJ and ODNI informed the FISC about the compliance incidents, FISC Judge Rosemary Collyer twice extended the time to review the certifications so that the FISC could receive additional information about the compliance incidents and the government’s plan to address them.

According to ODNI, during these extension periods, the NSA undertook a broad review of its Section 702 program. After considerable evaluation of the program and available technology, the NSA determined that it would no longer collect communications “about” a target:

After considerable evaluation of the program and available technology, NSA has decided that its Section 702 foreign intelligence surveillance activities will no longer include any upstream internet communications that are solely "about" a foreign intelligence target. Instead, this surveillance will now be limited to only those communications that are directly "to" or "from" a foreign intelligence target. These changes are designed to retain the upstream collection that provides the greatest value to national security while reducing the likelihood that NSA will acquire communications of U.S. persons or others who are not in direct contact with one of the Agency's foreign intelligence targets.
Therefore, in March 2017, the government amended the pending certifications, altering the Section 702 targeting and minimization procedures for the NSA to authorize only the acquisition of communications to or from a Section 702 target. In addition, the revised minimization procedures required NSA to delete the vast majority of previously acquired upstream Internet communications, including those to or from Section 702 targets.

Based on the amended certifications, the FISC determined that these changes sufficiently addressed the compliance incidents involving the inadvertent use of U.S.-person identifiers as search terms. Judge Collyer expressed concern about the government’s reporting of the compliance incidents and emphasized that prior to their remediation these incidents presented “a very serious Fourth Amendment issue.” She ultimately determined, however, that these new targeting and minimization procedures were consistent with FISA and the Fourth Amendment.

Because the certifications were not due to expire till April 2018, the government did not submit 2017 Certifications but instead waited untill 2018 to submit new certifications. The 2018 Certifications can be found here.

Summary Authors

John He (5/14/2017)

Lisa Limb (2/20/2019)

People


Judge(s)

Collyer, Rosemary M. (District of Columbia)

Attorneys(s) for Defendant

Carlin, John P. (District of Columbia)

Evans, Stuart J. (District of Columbia)

Lynch, Loretta (New York)

Sessions, Jeff (Alabama)

Judge(s)

Collyer, Rosemary M. (District of Columbia)

Attorneys(s) for Defendant

Carlin, John P. (District of Columbia)

Evans, Stuart J. (District of Columbia)

Lynch, Loretta (New York)

Sessions, Jeff (Alabama)

Documents in the Clearinghouse

Document

[redacted]

[Exhibit A] Procedures Used by the National Security Agency for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702...

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

July 10, 2015

July 10, 2015

Other

[redacted]

Affidavit of James B. Comey: Direction, Federal Bureau of Investigation

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

Sept. 17, 2016

Sept. 17, 2016

Declaration/Affidavit

[redacted]

[Exhibit D] Minimization Procedures Used by the Federal Bureau of Investigation in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

Sept. 21, 2016

Sept. 21, 2016

Other

[redacted]

Certification of the Director of National Intelligence and the Attorney General Pursuant to Subsection 702(g) of the Foreign Intelligence Surveillance

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

Sept. 21, 2016

Sept. 21, 2016

Other

[redacted]

Affidavit of the Director of the National Counterterrorism Center

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

Sept. 26, 2016

Sept. 26, 2016

Declaration/Affidavit

[redacted]

Affidavit of the Director of the Central Intelligence Agency

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

Sept. 26, 2016

Sept. 26, 2016

Declaration/Affidavit

[redacted]

Government's Ex Parte Submission of Reauthorization Certifications and Related Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order Approving Such Certifications and Amended Certifications

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

Sept. 26, 2016

Sept. 26, 2016

Other

[redacted]

[Exhibit C] Procedures Used by 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...

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

Sept. 26, 2016

Sept. 26, 2016

Other

[redacted]

Affidavit of Admiral Michael S. Rogers, United States Navy Director, National Security Agency

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

Sept. 26, 2016

Sept. 26, 2016

Declaration/Affidavit

[redacted]

[Exhibit G] Minimization Procedures Used by the National Counterterrorism Center in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended

[Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications

Sept. 26, 2016

Sept. 26, 2016

Other

Resources

Docket

Last updated Aug. 4, 2022, 3:05 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: Sept. 17, 2016

Closing Date: April 26, 2017

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

Defendants

United States (Washington), Federal

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: 2016 - 2017

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