Release of Documents Related to the 2018 FISA Section 702 Certifications

October 8, 2019

Today the ODNI, in consultation with the Department of Justice, is releasing documents, in redacted form, related to the Foreign Intelligence Surveillance Court (FISC) approval of the 2018 Certifications under Section 702 the Foreign Intelligence Surveillance Act (FISA). Initially, the FISC approved most aspects of the 2018 Certifications but found that certain parts of the Federal Bureau of Investigation’s (FBI) procedures concerning the querying of United States persons were not sufficient. The Government appealed this decision to the Foreign Intelligence Surveillance Court of Review (FISC-R), which affirmed the FISC’s decision in part. The Government subsequently submitted amended FBI querying procedures to address the issues, and the FISC found that the amended procedures were sufficient.

In addition to releasing the FISC and FISC-R opinions and to provide greater transparency to the public, we are also releasing all the targeting, minimization, and querying procedures related to the 2018 Certifications. Links to these documents, along with descriptions on the court decisions and background information on Section 702, are provided below. The documents are also posted in full-text searchable format on Intel.gov.

The 2018 Certifications and the FISC’s April Extension Order

In March 2018, the Government had submitted the 2018 Certifications from the Attorney General and the Director of National Intelligence. The 2018 Certifications, which contained required targeting, minimization, and querying procedures, sought to renew the expiring 2016 Certifications. In April 2018, the FISC issued an order finding that the 2018 Certifications and accompanying procedures “likely present[ed] one or more novel or significant interpretations of law, the consideration of which would benefit from amicus participation.” The FISC found “good cause” to extend the time for its consideration of the 2018 Certifications to provide for meaningful amicus curiae participation in the matter.

Background on the 2016 Certifications: The 2016 certifications were submitted to the FISC in September 2016. The FISC twice extended its time to consider the 2016 certifications and ultimately approved them on April 26, 2017 with an expiration date of April 26, 2018 (see FISC’s April 26, 2017 Memorandum and Opinion posted on May 10, 2017 on IC on the Record). Because review of the 2016 certifications were extended through 2017 and because the 2016 certification authority did not expire until April 2018, the Government did not submit certifications in 2017.

The FISC’s October 2018 Opinion

After receiving briefings and holding hearings involving the Government and Court-appointed amici curiae, the FISC issued a Memorandum Opinion and Order on October 18, 2018, (hereafter the FISC’s October 2018 Opinion), approving most aspects of the 2018 Certifications and accompanying targeting, minimization, and querying procedures. This opinion is linked below.

The FISC found that “the minimization procedures and querying procedures to be implemented by the FBI are consistent with the requirements of Section 702(e) and Section 702(f)(1)(A)-(B) respectively and of the Fourth Amendment, except insofar as they [were] inconsistent” with those authorities in two aspects. First, the FISC found that the FBI’s retention of all query terms without differentiating which terms concern U.S. persons did not meet the requirements of Section 702(f)(1)(B) of FISA, a provision enacted as part of the FISA Amendments Reauthorization Act of 2017 requiring the Government to adopt querying procedures that, among other things, “include a technical procedure whereby a record is kept of each United States person query term used for a query.” The FISC concluded that Section 702(f)(1)(B) requires that the FBI’s query records indicate which terms concern U.S. persons.

The FISC also concluded that the FBI’s querying and minimization procedures, as implemented, were inconsistent with Section 702 and the Fourth Amendment, in light of certain identified compliance incidents involving queries of Section 702 information. These incidents involved instances in which personnel either misapplied or misunderstood the query standard, such that the queries were not reasonably likely to return foreign intelligence information or evidence of a crime. Some of these instances involved queries concerning large numbers of individuals. While stating that the Government had taken “constructive steps” to address the identified issues, the FISC held that these steps did not fully address the statutory and Fourth Amendment concerns raised by the compliance incidents. The FISC suggested, however, that these statutory and Fourth Amendment concerns would be remedied if the Government adopted a proposal made by amici to document, in writing, the basis for the FBI’s belief that a particular query of Section 702 data using a U.S. person query term is reasonably likely to return foreign-intelligence information or evidence of crime before FBI personnel examined the content of Section 702 information returned by such queries. The 2018 Querying Procedures submitted by the other agencies, which were approved by the FISC as noted above, include this same documentation requirement.

Additionally, the FISC considered the scope of certain new restrictions regarding “abouts” communications that were enacted in the FISA Amendments Reauthorization Act of 2017. “Abouts” collection is the acquisition of communications that contain a reference to, but are not to or from, a Section 702 target. As the NSA explained in April 2017 (see NSA’s April 28, 2017 Statement), the NSA stopped acquiring any upstream internet communications that are solely “about” a foreign intelligence target and, instead, limited its Section 702 collection to only those communications that are directly “to” or “from” a foreign intelligence target. NSA’s 2018 Targeting Procedures contained the same limitation. Although the Government did not seek to resume “abouts” collection, the FISC, with assistance from amici, reviewed whether the “abouts” restrictions applied to any other types of Section 702 acquisitions currently being conducted. While the FISC held that the “abouts” restrictions apply across Section 702 acquisitions, it found that current Section 702 acquisitions did not implicate the “abouts” restrictions.

FISC’s October 2018 Opinion (released pursuant to 50 U.S.C. § 1872)

Appeal and FISC-R July 2019 Opinion

The Government appealed the FISC’s deficiency finding related to the FBI’s procedures to the FISC-R which, after briefings and oral arguments by the Government and amici, issued a per curiam opinion on July 12, 2019, affirming in part the FISC’s decision (hereafter FISC-R’s July 2019 Opinion). This opinion is hyperlinked below.

Like the FISC, the FISC-R concluded that “Section702(f)(1)(B) is best interpreted as requiring some kind of technical procedure that requires agency personnel to memorialize, to the extent reasonably feasible, whether a query term is a United States person query term.” Because the FISC-R’s conclusion regarding Section 702(f)(1)(B) required the Government to amend the FBI’s querying procedures, it declined to reach the issue of whether the FBI’s querying and minimization procedures complied with the requirements of FISA and the Fourth Amendment.

FISC-R July 2019 Opinion (released pursuant to 50 U.S.C. § 1872)

FBI’s Amended Querying Procedures

In response, the Government submitted, on August 12, 2019, amended FBI querying procedures (linked below) addressing the concerns identified in both the FISC and FISC-R opinions. The FBI’s amended querying procedures require that:

the FBI’s query records differentiate between U.S. person queries and all other queries;

the FBI record a written justification stating why a U.S. person query was reasonably likely to retrieve foreign intelligence information or evidence of a crime prior to reviewing the contents returned by such a query; and

the FBI make available records generated under these requirements to enable oversight by the Department of Justice and ODNI.

To implement the new provisions, the FBI assesses that it will complete the necessary modifications to two of its three applicable systems and provide training on the new requirements by approximately mid-December 2019. The FBI is considering whether or not to modify the third system or to stop using that system to hold unminimized Section 702 collection. In the interim, the FBI will require that the necessary query records be created outside that system.

FISC’s Amended September 2019 Opinion

On September 4, 2019, the FISC approved the FBI’s amended querying procedures, explaining that the revisions remedy the deficiencies contained in the earlier procedures. Thus, the FISC held that the FBI’s minimization and querying procedures were consistent with the requirements of Section 702 and the Fourth Amendment.

FISC’s September 2019 Opinion (released pursuant to 50 U.S.C. § 1872)

2018 Section 702 Certifications Procedures

2018 Targeting Procedures (released pursuant to the IC’s Principles of Transparency):

2018 Minimization and Querying Procedures (released pursuant to 50 U.S.C. § 1881a(e)):

Background on Section 702: Section 702 was enacted as part of the FISA Amendments Act of 2008 (FAA) and most recently reauthorized by the FISA Amendments Reauthorization Act of 2017. Section 702 permits the Attorney General and the DNI to jointly authorize, through certifications, the targeting of (i) non-U.S. persons (ii) who are reasonably believed to be located outside the United States (iii) to acquire foreign intelligence information. These certifications are accompanied by targeting procedures, minimization procedures, and querying procedures that are each designed to ensure that the Government’s collection is appropriately targeted against non-United States persons located overseas who may possess or are likely to communicate foreign intelligence information and that any such collection is appropriately handled in a manner that protects privacy and civil liberties.

Under Section 702, the FISC reviews the certifications and accompanying documents to ensure that they meet all the requirements of Section 702 and are consistent with the Fourth Amendment. The Court’s review is not limited to the procedures as written, but also includes an examination of how the procedures have been and will be implemented. Accordingly, as part of its review, the FISC considers the compliance incidents reported to it by the Government through notices and reports.

For additional background information, please refer to the 2019 Statistical Transparency Report Regarding Use of National Security Authorities for CY2018 posted on ODNI’s website IC on the Record.