Case: [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 (Nov. 2020) (702, Boasberg J.)

[Redacted] | U.S. District Court for the Foreign Intelligence Surveillance Court

Filed Date: Oct. 19, 2020

Case Ongoing

Clearinghouse coding complete

Case Summary

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 surveillanc…

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 here.

This entry describes the 2020 certification, which was assigned to Judge James E. Boasberg. The AG and DNI submitted their annual certifications on October 19, 2020. The court described the certifications as "largely a status-quo replacement" of the 2019 certifications. For more information on the 2019 certifications, see here.

The only "noteworthy change" to targeting procedures was that the FBI and NSA had to submit reports of noncompliance to the ODNI Office of Civil Liberties, Privacy, and Transparency rather than (as in prior years) ODNI's Civil Liberties Protection Officer. Judge Boasberg approved the change, noting it had "no substantive impact" on the reasonableness of the agencies' procedures.

The court approved stylistic changes to the government's minimization procedures. The NSA also agreed to restrict employees' access to information it collected that was protected by attorney-client privilege.

The court stated it would continue to review CIA and NSA reports about the criteria the agencies used to identify targets for surveillance. It also expressed concern that the FBI was using queries designed to retrieve evidence of crimes unrelated to foreign intelligence and had failed to keep proper records.

After reviewing the agencies' compliance, the court:

  • Extended the 2019 requirements that the NSA limit the amount of data it shared with other agencies; that agencies describe how they use intercepted communications; and that agencies describe steps taken to remove reports that are recalled due to non-compliance with FISA; and
  • Imposed additional requirements that agencies report when they delegate authority to make minimization determinations and when they run bulk queries.
Government reporting is ongoing, and the next evaluation will be conducted in 2021.

Summary Authors

Timothy Leake (5/6/2021)

Related Cases

[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)

People


Judge(s)

Boasberg, James Emanuel (District of Columbia)

Attorneys(s) for Plaintiff

Barr, William P. (District of Columbia)

Judge(s)

Boasberg, James Emanuel (District of Columbia)

Attorneys(s) for Plaintiff

Barr, William P. (District of Columbia)

Documents in the Clearinghouse

Document

Exhibit E: Minimization Procedures Used By the Central Intelligence Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, As Amended

[Redacted]

Sept. 16, 2019 Discovery Material/FOIA Release

Exhibit I: 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

[Redacted]

Sept. 16, 2019 Discovery Material/FOIA Release

Exhibit J: Querying Procedures Used by the Central Intelligence Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended

[Redacted]

Sept. 16, 2019 Discovery Material/FOIA Release

Exhibit B: Minimization Procedures Used by the National Security Agency In Connection With Acquisitions of Foreign Intelligence Information

[Redacted]

Sept. 16, 2019 Discovery Material/FOIA Release

Exhibit H: Querying Procedures Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Information

[Redacted]

Oct. 19, 2020 Discovery Material/FOIA Release

Exhibit K: Querying Procedures Used by the National Counterterrorism Center in Connection with Acquisitions of Foreign Intelligence Information

[Redacted]

Oct. 19, 2020 Discovery Material/FOIA Release

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

[Redacted]

Oct. 19, 2020 Discovery Material/FOIA Release

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

[Redacted]

Oct. 19, 2020 Discovery Material/FOIA Release

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

[Redacted]

Oct. 19, 2020 Discovery Material/FOIA Release

Exhibit C: 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

[Redacted]

Oct. 29, 2020 Discovery Material/FOIA Release

Docket

Last updated May 11, 2022, 8 p.m.

Docket sheet not available via the Clearinghouse.

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: Oct. 19, 2020

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

The Attorney General and the Office of the Director of National Intelligence.

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

Availably Documents:

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Warrant/Order allowing surveillance

Source of Relief:

Litigation

Order Duration: 2020 - None

Content of Injunction:

Reporting

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues