Case: In re DNI/AG 702(h) Certifications 2020-A, 2020-B, 2020-C, and Predecessor Certifications [FISC Docket 702(j)-20-01; 702(j)-20-02; 702(j)-20-03; 08-1833; BR 13-49]

This entry summarizes an order that the United States Foreign Intelligence Surveillance Court (FISC) issued in multiple cases related to the Foreign Intelligence Surveillance Act (FISA).

On September 2, 2021, Judge Rudolph Contreras of the FISC issued an order addressing the FBI's use of information that had come from surveillance conducted pursuant to various FISA provisions: Section 702 (foreign targeting), Title I (electronic surveillance), Title III (physical searches), and Title V (business records or other tangible things). The court held that the FBI was searching un-minimized information without following the government's requirement that a search had to be reasonably expected to return foreign intelligence information or evidence of a crime. In fact, the FBI's procedures only required that a search be used to find foreign intelligence information or evidence of a crime "to the extent reasonably feasible." The FBI had revised its procedures to require a written statement about why the search was reasonably likely to retrieve foreign intelligence information or evidence of a crime, but these statements were mostly being made from a pre-prepared list of options rather than a case-specific explanation. 

The court noted that in the previous few years, it had addressed this issue multiple times. The court cited its conclusion from 2018 that the FBI's repeated failure to follow the correct standard for Section 702 searches meant that the searches were not being conducted pursuant to minimization procedures, as the Fourth Amendment requires. It also had found violations in 2019 and 2020.

The court also addressed an issue involving its previous order that the FBI regularly report how many of its searches of Section 702 data were about evidence of a crime and not about foreign intelligence. The government had reported such a low rate of these searches that it "strain[ed] credulity," and the court stated that it was likely due to under-reporting issues. This could cause violations of Section 702, which requires the FBI to sometimes get approval before accessing communications unrelated to foreign intelligence.

As a result, the FISC ordered that (1) the FBI's search procedures must fully explain the requirements for querying un-minimized information, and be consistent between Titles I, III, and V and Section 702; (2) the FBI had to tell the court what it was doing to ensure compliance; (3) the FBI had to explain how it interpreted language in Section 702 about viewing foreign intelligence information and information about crimes; and (4) the FBI had to provide an assessment of whether its current systems and practices complied with Section 702.

The FISC later addressed the FBI's compliance issues discussed here in the 2021 FISA certification.