Release of the FISC Opinion Approving the 2016 Section 702 Certifications and Other Related Documents
May 11, 2017
Today the ODNI, in consultation with the Department of Justice, is releasing three sets of Foreign Intelligence Surveillance Act (FISA) Section 702 documents in redacted form.
First, we are releasing the Foreign Intelligence Surveillance Court’s (FISC) Memorandum and Opinion approving the 2016 Section 702 Certifications (dated April 26, 2017, and hereafter the April 2017 Opinion). We are releasing this Opinion in keeping with the Principles of Intelligence Transparency for the Intelligence Community.
Second, we are releasing National Security Agency’s (NSA) updated Section 702 targeting and minimization procedures that were approved as part of the FISC’s April 2017 Opinion. Note that targeting procedures have not previously been released. We are releasing these procedures also in keeping with the Principles of Intelligence Transparency for the Intelligence Community.
Finally, we are publicly posting two separate tranches of Section 702 documents that are being released pursuant to a Freedom of Information (FOIA) case filed in the Southern District of New York, ACLU v. National Security Agency, et al. (hereafter the ACLU FOIA release April 11, 2017, and the ACLU FOIA release May 10, 2017).
ODNI notes that, separately, NSA decided to make public today a report by its Inspector General about compliance with Section 702. This release – even with several important national-security redactions – is intended to add to the public’s understanding of NSA’s changes to Section 702 foreign intelligence collection. NSA’s January 7, 2016 Inspector General Report.
Background
Section 702 was enacted as part of the FISA Amendments Act of 2008 (FAA), and it requires the Attorney General and the DNI to provide to the FISC annual certifications authorizing the Intelligence Community (IC) to target non-U.S. persons reasonably believed to be located outside of the United States to acquire certain categories of foreign intelligence information. The FAA is a carefully constructed framework that provides the Government with the tools necessary to collect vital foreign intelligence information and includes robust protections for the privacy and civil liberties of U.S. persons. This framework is implemented in part through a detailed set of procedures designed to minimize the acquisition, retention, use, and dissemination of U.S. person information acquired under Section 702. For additional background information, please refer to the following documents previously released on IC on the Record: FISA Amendments Fact Sheet (posted on April 19, 2017), the FISC’s November 6, 2015 Memorandum Opinion and Order authorizing the 2015 Certifications (posted on April 15, 2016), the 2015 Section 702 Minimization Procedures (posted on August 11, 2016), and a Section 702 certification filing from 2014(posted on September 29, 2015).
The 2016 Section 702 Certifications: The FISC’s April 26, 2017 Memorandum Opinion and Order
In its April 2017 Opinion, the FISC concluded that the proposed certifications – including the associated targeting and minimization procedures – were consistent with FISA and the Fourth Amendment. In making its determination, the FISC considered the Government’s proposed Section 702 certifications submitted in September 2016 (“the 2016 Certifications”), the Government’s compliance record over the prior year (including a thorough review of several specific compliance incidents), and amendments made to the 2016 Certifications in March 2017.
After submitting its 2016 Certifications in September 2016, the Department of Justice and ODNI learned, in October 2016, about additional information related to previously reported compliance incidents and reported that additional information to the FISC. The NSA also self-reported the information to oversight bodies, as required by law. These compliance incidents related to the NSA’s inadvertent use of U.S. person identifiers to query NSA’s “upstream” Internet collection acquired pursuant to Section 702.
Pursuant to statutory requirements, the FISC was required to complete its review of the 2016 Certifications within 30 days of submission. See 50 U.S.C. § 1881a(i)(1)(B). Thus, the FISC had until October 26, 2016, to issue an order concerning the 2016 Certifications. However, after the October 2016 report to the FISC regarding improper queries, the FISC twice extended its time to consider the 2016 Certifications – first until January 31, 2017, and then until April 28, 2017 – in order to receive additional information about the compliance incidents and the Government’s plan to address them. See April 2017 Opinion at 3-4. The previous year’s certifications remained in effect during these extension periods.
During the extension periods, NSA undertook a broad review of its Section 702 program. Historically, NSA has been authorized to acquire communications to, from, or “about” a Section 702 target (i.e., communications that contain a reference to a Section 702-tasked selector) through its upstream Internet collection. After considerable evaluation of the program and available technology, NSA determined that it would no longer collect communications “about” a target (see NSA’s April 28, 2017, public statement NSA Stops Certain Section 702 “Upstream” Activities.
Accordingly, in March 2017, the Government amended the 2016 Certifications, to include submitting to the FISC amended Section 702 targeting and minimization procedures for NSA that authorize only the acquisition of communications to or from a Section 702 target. In addition, the revised minimization procedures require NSA to delete the vast majority of previously acquired upstream Internet communications, including those to or from Section 702 targets. Because of the more restricted nature of NSA’s reconfigured upstream Internet collection, certain restrictions in the use of U.S. person identifiers to query Internet communications acquired through NSA’s Section 702 upstream collection have been removed. See April 2017 Opinion at 23-30.
In considering the 2016 Certifications, as amended in March 2017, the FISC determined that the changes NSA made to its upstream Internet collection sufficiently addressed the compliance incidents involving the inadvertent use of U.S. person identifiers as query terms. See April 2017 Opinion at 29. The Court expressed concern about the government’s reporting of the compliance incidents and emphasized that prior to their remediation these incidents presented “a very serious Fourth Amendment issue.” April 2017 Opinion at 19. The FISC ultimately determined that NSA’s targeting and minimization procedures, as amended, were consistent with FISA and the Fourth Amendment to the Constitution. See April 2017 Opinion at 95.
Additionally, the 2016 Certifications authorized, for the first time, the National Counterterrorism Center (NCTC) to receive certain unevaluated counterterrorism information acquired pursuant to Section 702. The FISC found that NCTC’s minimization procedures governing the handling of such information were consistent with FISA and the Fourth Amendment. See April 2017 Opinion at 30-48. Additional information regarding NCTC’s access to Section 702-acquired information is provided below.
In considering the targeting and/or minimization procedures for the NSA, Federal Bureau of Investigation (FBI), and Central Intelligence Agency (CIA), the FISC reviewed details of the government’s compliance with and implementation of Section 702 over the prior year. See April 2017 Opinion at 66-95. After addressing in detail several particular compliance issues, the FISC concluded that the Section 702 procedures were sufficient, based “in large measure on the extensive oversight conducted within the implementing agencies by” the Department of Justice and ODNI. April 2017 Opinion at 67. The FISC did, however, order that the Government submit written reports on some of these issues. See April 2017 Opinion at 96-99.
The FISC’s April 26, 2017 Memorandum Opinion and Order
The 2016 Section 702 Certifications: NSA’s March 2017 Minimization and Targeting Procedure
The 2016 Section 702 minimization and targeting procedures were approved by the Attorney General and submitted to the FISC as part of the Government’s September 26, 2016, reauthorization submission. These procedures are intended to protect the privacy and civil liberties of U.S. persons, as required by the Fourth Amendment and FISA, in connection with the foreign intelligence activities undertaken by the NSA, FBI, CIA, and NCTC.
The minimization procedures detail requirements the government must meet to use, retain, and disseminate Section 702 data, which include specific restrictions on how the IC handles non-publicly available U.S. person information acquired from Section 702 collection of non-U.S. person targets, consistent with the needs of the government to obtain, produce, and disseminate foreign intelligence information.
The targeting procedures detail the requirements that the government must take before tasking a selector, as well as verification steps after tasking, to ensure that the user of the tasked selector is being targeted appropriately under Section 702 – specifically, that the user is, and remains, a non-U.S. person, located outside the United States, whose selector is being tasked to acquire foreign intelligence information. An individual determination must be made that each tasked selector meets the requirements of the targeting procedures.
Only NSA and FBI have targeting procedures because these two agencies are the only two agencies permitted to directly engage in targeting and the acquisition of information pursuant to Section 702. The CIA and NCTC have only minimization procedures and do not have targeting procedures because neither is permitted to directly engage in targeting or acquisition; CIA and NCTC may only receive Section 702-acquired information.
As explained above, NSA’s 2016 Section 702 minimization and targeting procedures were revised to address changes to NSA’s upstream collection. These revised procedures were subsequently approved by the Attorney General and submitted to the FISC on March 30, 2017. After thorough consideration, the FISC approved the NSA’s revised procedures submitted in March 2017 in the FISC’s April 2017 Opinion.
Approved by the FISC’s April 2017 Order:
- 2016 NSA’s Section 702 Minimization Procedures dated March 30, 2017
- 2016 NSA’s Section 702 Targeting Procedures dated March 30, 2017
The 2016 Section 702 Certifications: Documents Submitted to FISC in September 2016
On September 26, 2016, the Government submitted to the FISC its 2016 Section 702 certification application package, of which the applicable documents were provided to the ACLU as part of the ACLU FOIA May 10, 2017 release. Included in today’s release are the FBI, CIA, and NCTC minimization procedures and the FBI targeting procedures that were submitted to the FISC on September 26, 2016, and subsequently approved as part of the April 2017 Opinion.
Previously, NCTC received certain evaluated counterterrorism information acquired pursuant to Section 702 (see NCTC’s 2015 Section 702 Minimization Procedures, posted on IC on the Record on August 11, 2016). Previously, in 2012, the FISC authorized NCTC to receive raw counterterrorism information from the FBI under Titles I and III of FISA provided that NCTC likewise handled, retained, and disseminated such information pursuant to FISC-approved minimization procedures (see IC on the Record’s Release of Documents Concerning Activities under the Foreign Intelligence Surveillance Act: Sharing of Unminimized Information Collected Pursuant to Titles I and III of FISA, posted on March 3, 2015, including NCTC’s Titles I and III minimization procedures posted on September 29, 2015).
As further explained in NCTC’s May 10, 2017 public statement, NCTC’s new procedures do not authorize NCTC to directly engage in targeting or acquisition. Rather, the procedures authorize NCTC to receive certain intelligence information that has already been collected by targeting non-U.S. persons outside the United States pursuant to Section 702 of FISA. This does not include upstream FISA collection.
Also included in this ACLU FOIA May 10, 2017 release pursuant to applicable FOIA requirements are the NSA September 26, 2016, targeting and minimizations procedures that were subsequently revised and replaced by their March 30, 2017, versions.
FISC’s Order Extending the
2016 Certifications dated October 26, 2016
Approved by the FISC’s April 2017 Order:
- 2016 FBI’s Section 702 Minimization Procedures dated September 26, 2016
- 2016 FBI’s Section 702 Targeting Procedures dated September 26, 2016
- 2016 CIA’s Section 702 Minimization Procedures dated September 26, 2016
- 2016 NCTC’s Section 702 Minimization Procedures dated September 26, 2016
- 2016 FBI Director’s Affidavit dated September 26, 2016
- 2016 CIA Director’s Affidavit dated September 26, 2016
- 2016 NCTC Director’s Affidavit dated September 26, 2016
Replaced by NSA’s March 2017 procedures above:
- 2016 NSA’s Section 702 Minimization Procedures dated September 26, 2016
- 2016 NSA’s Section 702 Targeting Procedures dated September 26, 2016
Other Documents Originally Submitted to the FISC on September 26, 2016:
- 2016 Certification Cover Filing dated September 26, 2016
- 2016 Attorney General and DNI Certification dated September 26, 2016
- 2016 NSA Director’s Affidavit dated September 26, 2016
Other FISA Section 702 and Related Documents
On April 11, 2017, the Government provided fifteen (15) applicable documents related to Section 702 of FISA as part of the ACLU FOIA April 11, 2017, release. ACLU posted those on their website and we are posting the same documents provided as part of the ACLU FOIA April 11, 2017, release below.
- Doc 1 – 2015 Summary of Notable Section 702 Requirements
- Doc 2 – Aug. 2014 FISC Opinion & Order re: FBI’s Minimization Procedures
- Doc 3 – Jul. 2015 Government Response to FISC Order
- Doc 4 – Aug. 2015 FISC Order Appointing an Amicus Curiae
- Doc 5 – Aug. 2015 Government Notice re: FISC Order Appointing an Amicus Curiae
- Doc 6 – Sep. 2015 FISC Briefing Order
- Doc 7 – Oct. 2014 FBI Annual Section 702(l)(3) Report
- Doc 10 – Oct. 2015 FISC Hearing Transcript
- Doc 11 – Section 702 Attorney General Guidelines
- Doc 12 – NSA External Process Document re: U.S. Person Queries of Content
- Doc 13 – DOJ Memorandum re: Restrictions on the Use of Section 702 Information
- Doc 14 – NSA External Process Document re: U.S. Person Queries of Metadata
On July 11, 2017, the Government provided six (6) documents related to Section 702 of FISA
to the ACLU.
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