Case: [Redacted Caption] Gov't 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 (April 2022) (702, Contreras, J.)

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 in this Clearinghouse.

This entry summarizes the 2021 Section 702 certification, which was assigned to Judge Rudolph Contreras. The U.S. government submitted a request for approval of its certifications on October 18, 2021, and submitted amendments to the certifications on March 18, 2022. The court granted approval on April 21, 2022.

The court explained that the 2021 certifications were generally consistent with the previous year, with a few significant changes. The 2020 certifications were set to expire in November of 2021, but the FISC extended them for multiple months to allow the government to provide the court with additional information on two issues: 1) a proposed NSA technique that the government was requesting authorization for, and 2) compliance issues as to the FBI's querying procedures. The FISC had also appointed an amicus curiae to make arguments about the NSA technique. The court approved the technique, though the details are redacted.

The other significant issue relates to how the FBI searches information it acquires through Section 702 surveillance. In a prior order, described in In re DNI/AG 702(h) Certifications 2020-A, 2020-B, 2020-C, and Predecessor Certifications, the FISC had ordered the FBI to improve its querying procedures so that it could only search the Section 702 data when a search was reasonably expected to return foreign intelligence information or evidence of a crime. The court noted that since that order there had still been querying issues, and specifically discussed non-compliant queries related to the January 6, 2021 Capitol breach. It also stated that the government, in evaluating the FBI's queries, had found over 278,000 non-complaint searches of data that the government had obtained from FISA surveillance.

The court discussed how the government was changing its procedures to address these problems. FBI procedures would now state that a query could not be conducted unless a) "the person conducting the query [has] the purpose of retrieving foreign intelligence information or evidence of a crime," b) "the person conducting the query [has] a specific factual basis to believe that [the search] is reasonably likely to retrieve foreign intelligence information or evidence of a crime; and" c) "the query [is] reasonably tailored to retrieve foreign intelligence information or evidence of a crime without unnecessarily retrieving other information." FBI personnel would also have to explain that factual basis in writing before accessing any Section 702 information.

The court found that, if these procedures were followed, the government's statutory and constitutional obligations would be satisfied. The court also summarized various changes the FBI had made to the search procedures to try to ensure their personnel actually followed the querying requirements. There was also a related issue, discussed in In re DNI/AG 702(h) Certifications 2020-A, 2020-B, 2020-C, and Predecessor Certifications, involving apparent under-reporting of queries that were only looking for evidence of a crime, not for foreign intelligence. Here, the FBI had proposed changing the search procedures to try to fix that problem. The court largely approved of all of these changes, though it noted that it would keep monitoring "evidence-of-crime-only" queries and the issues those brought up. The court also discussed non-compliance with the requirement that the FBI record whenever it used search terms that were U.S. persons. The government had proposed changes to fix this problem, which the court approved of.

The court addressed a few other changes to procedures in the opinion. The government changed its minimization procedures to make sure they met a statutory requirement that non-public information identifying a US person cannot be disseminated without the person's consent except in certain limited circumstances. The court agreed that this procedural change was useful. Another issue involved a change in the way the government could transmit information to foreign governments when it needed assistance in understanding or translating it. The court also addressed a procedural change regarding how information would be destroyed when it had been obtained from an "improper tasking."

The court concluded that the government's proposals complied with statutory requirements and the Fourth Amendment. As to the Fourth Amendment, the court discussed a 2019 opinion from the U.S. Court of Appeals for the Second Circuit in U.S. v. Hasbajrami holding that queries are "Fourth Amendment event[s]" that must be "reasonable" in order to be constitutional. However, the FISC disagreed, sticking to its previous conclusion that only the overall procedures themselves must be reasonable.

Finally, the court discussed various other compliance issues. This included 1) the requirement that NSA personnel obtain approval from the agency's Office of General Counsel before using a U.S. person as a search term, 2) an FBI targeting issue that was largely redacted, 3) issues with not deleting recalled reports, 4) agency monitoring of employees and "insider threats," 5) the NSA's retention of certain information as part of query audits, and 6) the NSA's automated data processing.

The court ultimately approved the certification, with some added requirements including regular reporting about issues such as 1) preserving Section 702 data for litigation purposes, 2) minimization or querying exemptions that allow the government to not respond to congressional mandates, 3) evidence-of-crime-only queries, 4) disseminating information to the National Center for Missing and Exploited Children, 5) recalled reports, 6) agency monitoring of employees,  and 7) delegations of authority made by the National Counterterrorism Center.

This case is now closed.