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]

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 The government had previously proposed a broader version of these procedures in the 2021 certifications, but had withdrawn the proposal after the court raised Fourth Amendment concerns.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.