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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.
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.