Case: In re DNI/AG 702(h) Certification 2023-A and Its Predecessor Certifications [FISC Docket 702(j)-23-01; 702(j)-23-02; 702(j)-23-03]

23-00001 | Foreign Intelligence Surveillance Court

Filed Date: March 13, 2023

Closed Date: April 11, 2023

Clearinghouse coding complete

Case Summary

Section 702 of the Foreign Intelligence Surveillance Act (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 t…

Section 702 of the Foreign Intelligence Surveillance Act (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 2023 certification, which was assigned to Judge Rudolph Contreras of the FISC. The government submitted its request for certifications on March 13, 2023, and the court approved the request on April 11, 2023. The court stated that the 2023 certifications were mostly similar to the 2021 certifications, but addressed a few significant issues.

First, the court discussed new proposed NSA minimization and querying procedures related to vetting non-U.S. persons trying to come to the U.S. or to receive an immigration benefit. Under the new certifications, the NSA could search Section 702 data to vet people, even if it they didn't expect to be finding foreign intelligence information. The government had previously proposed a broader version of these procedures in the 2021 certifications, but had withdrawn the proposal after the court raised Fourth Amendment concerns. The new proposal would not allow queries about people that the NSA knows, or should know, are in the U.S. The court had previously appointed amici curiae to write briefs about the new proposal. The court concluded that the proposal complied with statutory and constitutional requirements.

Second, the court discussed the NSA's new definition of "processing" Section 702 data. Under the new certifications, the NSA could process data without following the requirements that were in place when it queried data. Processing was defined as "any action necessary to convert unminimized section 702-acquired information into an intelligible form," or "any machine-initiated action designed to identify, curate, label, or organize such information." The court analyzed this definition and found that it complied with FISA and the Fourth Amendment.

Third, the court addressed an ongoing issue involving the FBI's non-compliance with querying requirements. The court discussed several improvements the FBI had made, including 1) requiring that the person conducting a query of Section 702 information "have a specific factual basis to believe that it is reasonably likely to retrieve foreign intelligence information or evidence of a crime" and put that basis in writing, 2) requiring that queries "be reasonably tailored to retrieve foreign intelligence information or evidence of a crime," 3) changing its systems to help ensure compliance, and 4) increasing training and oversight. The court cited an analysis finding 1.7% of FBI queries were non-compliant, and concluded the FBI was improving its compliance. The court also discussed errors with recording the use of U.S. persons as query terms, which it had addressed the previous year, and found this was still an ongoing issue. The court also addressed an issue it had raised previously involving undercounting of searches that only involved evidence of a crime, rather than foreign intelligence.

Ultimately, the court approved the certifications and enacted various reporting requirements. This case is now closed, and the next certification will occur in 2024.

Summary Authors

Micah Pollens-Dempsey (5/4/2024)

Documents in the Clearinghouse

Document

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 Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended

Re: Section 702 2023 Certification

March 8, 2023

March 8, 2023

Other

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 of the Foreign Intelligence Surveillance Act of 1978, as Amended

Re: Section 702 2023 Certification

March 13, 2023

March 13, 2023

Other

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

Re: Section 702 2023 Certification

March 13, 2023

March 13, 2023

Other

Minimization Procedures Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended

Re: Section 702 2023 Certification

March 13, 2023

March 13, 2023

Other

Querying Procedures Used by the Federal Bureau of Intelligence in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended

Re: Section 702 2023 Certification

March 13, 2023

March 13, 2023

Other

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

Re: Section 702 2023 Certification

March 13, 2023

March 13, 2023

Other

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

Re: Section 702 2023 Certification

March 13, 2023

March 13, 2023

Other

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

March 13, 2023

March 13, 2023

Other

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

Re: Section 702 2023 Certification

March 13, 2023

March 13, 2023

Other

Querying 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

Re: Section 702 2023 Certification

March 13, 2023

March 13, 2023

Other

Docket

Last updated Nov. 24, 2023, 3 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: March 13, 2023

Closing Date: April 11, 2023

Case Ongoing: No

Plaintiffs

Plaintiff Description:

The U.S. Attorney General, through the Department of Justice, and the Director of National Intelligence, through 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):

Unreasonable search and seizure

Freedom of speech/association

Special Case Type(s):

Warrant or subpoena application

Available Documents:

Non-settlement Outcome

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Warrant/Order allowing surveillance

Source of Relief:

Litigation

Content of Injunction:

Reporting

Recordkeeping

Monitoring

Warrant/order for search or seizure

Order Duration: 2023 - 2023

Issues

General/Misc.:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues