Filed Date: 2018
Closed Date: 2019
Clearinghouse coding complete
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 NS-DC-0072 in this Clearinghouse.
On March 27, 2018, DOJ and ODNI submitted their annual certifications for 2018. The 2018 Certifications reauthorized certifications under section 702 that the government had submitted on September 26, 2016, as 2016 Certifications. The filing of 2018 Certifications meant that the 2016 Certifications would remain in effect, even past their expiration date of April 26, 2018, until the Court approved or denied the 2018 Certifications.
On October 18, 2018, the FISC issued an opinion and order addressing the 2018 Certifications. 402 F.Supp.3d 45. FISC Judge James E. Boasberg granted in part and denied in part the requested approval for the amended certifications. 402 F.Supp.3d 45 (2018).
In outlining the procedural history of the 2018 Certifications, Judge Boasberg touched on the Court's initial concerns with the 2018 Certifications. These were:
1) exemptions in the querying and minimization procedures that seemed unreasonably broad under the Fourth Amendment and FISA's definition of minimization procedures;
2) under the querying procedures, the FBI would keep records of all queries, but those records would not include whether the query was associated with a United States person and thus this practice appeared to violate the statutory requirement that the querying procedures keep a record of each United States person used for a query; and
3) the querying procedures did not require FBI personnel to document the basis for finding that each United States person query term satisfied the relevant standard.
In response, the government amended their certifications on September 18, 2018. The new certifications 1) narrowed the scope of exemptions; 2) did not alter the FBI's record keeping requirements, but addressed the potential operation consequences of more stringent record keeping requirements; and 3) included supplemental procedures for "categorical batch queries" where subjection to exceptions, the FBI would be required to seek written approval before reviewing information retried in a categorical batch query.
In Part II of the opinion, Judge Boasberg addressed whether the certifications contained the elements required by Section 702(h). He found that the 2018 Certifications contained all the necessary statutory elements.
In Part III of the opinion, Judge Boasberg addressed the targeting procedures and issues related to the scope of acquisitions. Section 702(d)(1) requires "targeting procedures to be 'reasonably designed' to 'ensure that any acquisition . . . is limited to targeting persons reasonably believed to be located outside of the United States.'" This part of the opinion is largely redacted. The reasoning is unclear due to the redactions, but Judge Boasberg found that proposed targeting procedures satisfied the requirements of the statute and are consistent with the Fourth Amendment in that they were reasonably designed to avoid acquisitions of non-target communications. He also approved the proposed scope of acquisitions. Judge Boasberg also adopted recommendations from amici curiae. These included the government reporting what percentage of communications acquired did not stem from a Section 702 target. Amici curiae also recommended the the Court periodically brief Congress. Judge Boasberg chose not to adopt this recommendation, finding that "the Court sees no need to dictate the terms of executive-branch disclosures to Congress," and if Congress sought additional information they could seek that information through the legislative process. The statute set forth for accomplishing acquisitions under Section 702 authorized the AG and DNI to direct an electronic communication service to provide the Government with all information "necessary to accomplish the acquisition in a manner that [would] protect the secrecy of the acquisition." An "electronic communication service provider" refers to: 1) a telecommunications carrier; 2) a provider of electronic communication service; and 3) any other communication service provider with access to electronic communications or wire.
In his discussion of the targeting procedures, Judge Boasberg briefly discussed six limitations on acquisitions authorized under Section 702. Two of these stated that an acquisition "may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." Three of the limitations prohibit the intentional targeting of persons under particular circumstances, such as anyone known to be in the U.S. or a U.S. person reasonably believed to be outside of the country. The last limitation requires acquisitions to be conducted in a way that is consistent with the Fourth Amendment.
In Part IV of the opinion, Judge Boasberg addressed the querying procedures and minimization procedures proposed. He found that the FBI's querying procedures did not comply with the requirements set forth by Section 702(f)(1)(B) to keep records of U.S. persons query terms used. The FISA Amendments Reauthorization Act, passed in 2017, required FISC to review government adopted querying procedures. The 2018 Certifications were the first certifications subject to this requirement. The querying procedures had to be consistent with the Fourth Amendment and stipulate a procedure for record keeping of each United States person query term (query is the "use of one or more terms to retrieve the unminimized contents or noncontents located in electronic and data storage systems of communications of or concerning United States persons obtained"). The Reauthorization Act also amended Section 702 to require the government to obtain a FISC order before being allowed to access Section 702 acquired information under certain circumstances. This amendment only applied to the FBI and was limited to circumstances in which a query was made of a United States person, a query of a United States person that was not intended to extract foreign intelligence, and only to criminal investigations that did not relate to national security. Furthermore, the FBI did not need a FISC order if the FBI determined there was a reasonable belief that the information sought could assist in mitigating a threat to life or serious bodily harm. Within his discussion, Judge Boasberg found that the FBI's practice of not distinguishing between U.S. persons and other persons in their query terms was not consistent with Section 702. The Government argued that requiring FBI to distinguish between U.S. persons and foreign persons in record keeping would lead to an inefficient use of resources and poor record keeping within the FBI. Judge Boasberg was not moved by this argument, asserting that it was not for the Court to consider policy considerations in lieu of a clear statutory command. At the conclusion of Judge Boasberg's discussion of the procedures, he conceded that FISC was not mandating that the FBI immediately issue a new means of creating appropriate records, but rather take significant steps towards a new record keeping system.
The intention of the querying standards is to avoid acquiring irrelevant information from United States persons. The court found that the FBI has not complied with the querying standard. From April 2017 to October 2019, the government reported a large number of FBI queries that were not likely to produce foreign-intelligence information or criminal evidence. While much of it is redacted, the court briefly outlined the degree to which the FBI acquired information. From March 24-27, the FBI conducted queries for more than 70,000 communication facilities that were associated with persons with access to FBI facilities and systems. They proceeded with these acquisitions even though the FBI Office of General Counsel had advised that they should not be conducted without approval by that office and the National Security Division of the DOJ. On December 1, 2017, the FBI conducted more than 6,800 queries using Social Security Numbers. The government alleges that these queries stemmed from misunderstandings by some FBI personnel about what "reasonably likely to return foreign intelligence information" meant. There were also a number of other non-compliant queries reported by the FBI. These include instances where FBI personnel conducted queries for personal reasons, such as running queries on themselves, other FBI employees, and relatives. The Court explicitly noted that they were less concerned with these types of queries compared to instances where the querying standard was misunderstand, because "it would be difficult to completely prevent personnel from querying data for personal reasons." Judge Boasberg outlined three factors in his concern about the large number of queries showing a misunderstanding of the querying standard: 1) limits on the government's oversight procedures; 2) the FBI's policy of encouraging routine and maximal querying of Section 702 information, and 3) complications in applying the querying standard.
In his discussion of limited oversight, Judge Boasberg summarized the process of governmental oversight of the FBI's querying procedures. The Office of Intelligence (OI), a subsidiary of the National Security Division within the DOJ, visited about half of the FBI's field offices annually for oversight purposes. Because OI tends to focus on offices that use FISA authorities more, some offices do not receive oversight visits for periods of two years or more, leading to lengthy delays in detecting violations and reporting them to FISC. The statement is redacted, but it appears that in one instance an office "had been conducting improper queries in a training context since 2011, but the practice was not discovered until 2017." The OI usually reviewed queries taken during a specific interval of time. Within these query records, the FBI failed to distinguish U.S. person queries, to document their reasoning for conducting the query, and to record whether a query was intended to return evidence pertaining to foreign-intelligence or criminal activity. Thus, the OI reviewed only a small batch of queries which often lacked the basic necessary information to identify violating queries. Judge Boasberg concluded that it was "entirely possible that further querying violations involving large numbers of U.S. person query terms have escaped the attention of overseers and have not been reported to the Court."
In his discussion of the FBI's practice of encouraging personnel to maximize querying information, Judge Boasberg outlined the tension in the FBI's policy of maximizing use of queries and Section 702's requirement that queries be used only in circumstances satisfying the querying standard. Judge Boasberg conceded that this policy may help FBI personnel in their goals of protecting national security, but also acknowledged that it likely created an environment where misapplications of the query standard were more likely to occur. Judge Boasberg concluded that the minimizations procedures were not compliant with the statute or the Fourth Amendment. The court also concluded that under a Totality of Circumstances standard, where a court balances the intrusion on individual privacy against how necessary it is for the government's interest, that the procedures were still not consistent with the Fourth Amendment.
In its 2018 Certifications, the government also proposed they be allowed to indefinitely retain metadata from 702 acquisitions and unminimized. In regards to the metadata, Judge Boasberg required that the government explicitly define what they considered to be metadata and the extent to which the data could reveal location information of U.S. persons. Judge Boasberg stipulated in his conclusion that the government had to submit a report describing what it viewed as metadata and to what extent that data could reveal location information about U.S. persons.
Following the 2018 Opinion, on November 15, 2018, the government appealed FISC's finding that a technical procedure was needed to record whether a query term was a United States person query term and the finding that the FBI's proposed querying and minimization procedures did not comply with FISA and the Fourth Amendment to the Foreign Intelligence Surveillance Court of Review. On November 16, 2018, the court granted a stay of the implementation of FISC's deficiency orders that would have precluded the FBI from conduction Section 702 queries. The government contested the finding in regards to the record keeping on the same grounds, namely that it would deplete necessary resources.
FISC appeals are decided by the Foreign Intelligence Surveillance Court of Review (the FISCR). On July 12, 2019, FISCR Judges Cabranes, Tallman, and Sentelle affirmed in part the October 2018 order. In re DNI/AG 702(h) Certifications 2018, 941 F.3d 547 (FISCR 2010). They held that the proposed querying standards did not comply with Section 702 because they did not include procedures for record keeping of U.S. person querying terms. As to whether the querying and minimization procedures complied with FISA and the Fourth Amendment, the court declined to answer because their holding regarding the record keeping would necessitate that the Government amend the procedures anyways. The order also stipulated that the November 16, 2018 stay would stay in effect until FISC issued an opinion concerning the amended procedures.
On August 12, 2019, the Attorney General and Director of National Intelligence amended the 2018 Certifications. The amended querying procedures required that: 1) the query records differentiate between U.S. person query terms and all other terms; 2) the FBI record a written justification stating why a U.S. person query was likely to retrieve criminal or foreign intelligence information before reviewing the contents returned; and 3) that the FBI make available these records to enable oversight. FISCR Judges Cabranes, Tallman, and Sentelle held that these changes were sufficient to comply with Section 702 and the Fourth Amendment. A redacted version of the opinion is available here. They granted the approval of the 2018 Certifications, contingent on the government submitting a written report detailing the implementation of the new record keeping procedures.
Cedar Hobbs (2/9/2020)
[Redacted Caption] Gov't Ex Parte Submission of Reauthorization Certifications & Related Procedures, Ex Parte Submission of Amended Certifications & Request for an Order Approving Such Certifications & Amended Certifications (Dec. 2019) (702, Boasberg J.), Foreign Intelligence Surveillance Court (2019)
Boasberg, James Emanuel (District of Columbia)
Boasberg, James Emanuel (District of Columbia)
Last updated May 11, 2022, 8 p.m.Docket sheet not available via the Clearinghouse.
State / Territory: District of Columbia
Filing Date: 2018
Closing Date: 2019
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: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Special Case Type(s):
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Order Duration: 2018 - 2019
Content of Injunction: