Case: [Caption Redacted] Government's Ex Parte Submission of [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures (November 2013) (702, Walton, J.)

In June 2017, in response to a  lawsuit filed by the Electronic Frontier Foundation, the federal government released eighteen previously classified opinions by the Foreign Intelligence Surveillance Court (FISC). One of the opinions declassified involved this case.

Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. § 1881a, 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].

On July 31, 2012, the government filed an Ex Parte Submission of [Redacted] and Related Procedures, Ex Parte Submission of [Redacted], and Request for an Order Approving [Redacted]. On August 30, 2013, FISC Judge Reggie B. Walton approved the government's targeting and minimization procedures. The government's submissions were accompanied by two sets of targeting procedures, for use by the NSA and FBI, and four sets of minimization procedures, for use by the NSA, FBI, CIA, and the National Counterterrorism Center (NCTC).

Although Judge Walton's analysis of the NSA and FBI's targeting procedures are heavily redacted, he found that both procedures were "reasonably designed" to target persons reasonably believed to be located outside the United States and to prevent intentional acquisition of any communications where the sender and recipients are located in the United States.

Judge Walton found that the four sets of minimization procedures by the NSA, FBI, CIA, and NCTC were all sufficiently similar, if not identical, to the 2012 certifications and that "basic framework of protections formed by the previously-approved procedures remain[ed] intact." Therefore, Judge Walton was satisfied that any compliance problems and relatively minor changes in the minimization procedures did not preclude the court from finding that the targeting and minimization procedures were consistent with the Fourth Amendment and the statutory requirements of Section 702.