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.)

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.