Eleven Documents from ODNI on Section 702: Summaries

On Sept. 4, the Office of the Director of National Intelligence released a tranche of documents related to Section 702 of the Foreign Intelligence Surveillance Act. The documents contain a December 2019 ruling by the Foreign Intelligence Surveillance Court (FISC) approving procedures developed by the FBI, CIA, NSA and National Counterterrorism Center (NCTC) for targeting surveillance under Section 702, minimizing information obtained under Section 702 and querying—that is, searching—that information. All the procedures are dated Sept. 17, 2019. Below, we summarize each document. Note that redactions necessarily leave gaps in some of the summaries. Document 1: The FISC’s December 2019 Opinion On Sept. 17, 2019, the government filed for approval of certifications and related procedures involving “the targeting of non-United States persons reasonably believed to be located outside the United States to acquire foreign intelligence information." The request was reviewed by the Foreign Intelligence Surveillance Court under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The 2019 certification request proposed continuation of information acquisition under the 2018 certification and sought approval of amendments to the certifications. These amendments sought to apply the same minimization and querying procedures to information obtained under the 2019 certification and to information obtained under certifications from prior years. The FISC issued a classified memorandum order on December 6, 2019 that approved the 2019 certifications and related procedures for targeting, minimization, and querying under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The court determined that the procedures satisfy the FISA statute and the Fourth Amendment. The court also held that prior procedures and certification pursuant to Section 702 also satisfied both the FISA and the Fourth Amendment. Targeting Procedures The court found that proposed targeting procedures complied with the FISA and the Fourth Amendment. Under Section 702, targeting procedures must be "reasonably designed" to "ensure that any acquisition authorized under [Section 702(a)] is limited to targeting persons reasonably believed to be located outside the United States" and to "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” One set of issues the court addressed involved the NSA’s upstream and downstream internet data collection—two different methods of collection. Currently, when the NSA conducts upstream internet collection, it must ensure that at least one end of each acquired communication stems from outside U.S. borders. The government proposed lifting one of the requirements involved in those targeting procedures, the specifics of which are redacted, which the government claimed would help avoid the loss of foreign intelligence information. The government also proposed modifying downstream procedures to only require “post-tasking” checks—which help detect if a Section 702 target is located within the U.S—only when the NSA “is technically capable of performing them.” The court approved the modifications. Regarding the latter modification concerning downstream collection, the court noted that it “expects that … post-tasking checks will be employed whenever feasible.” The opinion also addressed proposals for information sharing between the NSA and FBI in connection with certain requests. In response to prior court guidance that the government should include more detail about information sharing in its targeting procedures, the government proposed additional steps, such as determining whether a given user of a targeted account is reasonably believed to be outside the U.S. and a non-US. person. The government did not provide a timeline for implementation of this measure, and the court requested that it be implemented“expeditiously.” The court also approved additional, heavily reacted changes to FBI procedures, including one that permits the bureau under certain circumstances to “forgo actions that would otherwise be required” and another that modifies agency powers when facing immediate threats. Satisfied with the effects of the proposals on balance, the court approved the changes. Minimization and Querying Procedures The court found that proposed targeting procedures satisfied the requirements of FISA and the Fourth Amendment. FISA requires that minimization procedures (which limit collection and retention of irrelevant information regarding U.S. persons) be instated "for acquisitions authorized under" Section 702(a) and querying procedures be put in place "for information collected pursuant to an authorization under" Section 702(a). The court found that proposed minimization and querying procedures by the FBI, CIA and NSA satisfied Section 702. One group of proposed changes involved FBI, CIA and NSA provisions related to user-activity monitoring (UAM): systems that monitor agency’s network use to protect against misuse, and which sometimes capture and store unminimized 702 information. Under the NSA’s UAM provisions, the agency is not required to remove unminimized Section 702 information from its system. The court did not take issue with the NSA provisions and found the proposed changes acceptable. The court also approved a similar change as applied to FBI archives of messages from classified email and IM systems. While the court also approved a narrowed requirement for the FBI to report any unminimized Section 702 information to the FISC, it chastised the bureau for its “unjustifiabl[e] disregard” of “the current reporting requirement.” It stated that the government did not “tak[e] concrete steps to comply even partially with the court's directive (or timely seeking relief from it)” from October 2018, and that the bureau must still do so as it has not sought retrospective relief. Another set of changes sought to exclude searches of FBI, CIA and NSA UAM systems from definition of “query,” “so long as the only unminimized section 702-acquired information that the searches run against are in records captured through user activity monitoring." The FBI proposed a similar procedure for its archival email and messaging systems. The court agreed that the changes were consistent with statute and the Fourth Amendment. Additionally, the court approved the government’s proposal to increase the retention period for information gathered through NSA’s upstream collection process from two to five years. It also addressed National Counterterrorism Center (NCTC) procedures regarding automated translation assistance from the CIA. In June 2019, the government disclosed that CIA assistance to NCTC violated some restrictions of the 2018 NCTC Minimization Procedure, as the assistance produced a log of encrypted source text maintained for up to five years. The court approved this practice as a “narrow exception” under the 2019 NCTC Minimization Procedures. Retention of U.S. Person Information by the CIA The court approved the CIA’s proposed minimization procedures concerning retention of information. Under its current minimization procedures, the CIA is generally authorized to retain unminimized information that may contain U.S. person information for five years. The CIA is further authorized to retain U.S person information beyond that period if the information meets certain retention criteria, subject to a requirement to delete U.S. person identities, unless the identity is necessary to understand the information. The CIA minimization procedures discussed were revised to omit language so as to clarify that the retention requirements apply to U.S. person communications and information about a U.S. person in any communication. Court Notification Requirements High-level agency officials are authorized to make specific determinations to approve overriding minimization requirements. The NSA, FBI, CIA and NCTC all submitted revised procedures that now require the government to report such approvals to FISC. The court noted that such increased reporting should better enable it to ensure that the agencies implement those provisions reasonably. Loss or Abandonment of Lawful Permanent Resident Status Lawful permanent residents of the United States are U.S. persons under Section 702. Current NSA, FBI, NCTC and CIA minimization procedures allow a determination that a person has lost or abandoned their lawful permanent resident status, and therefore is no longer a U.S. person, to be made either: 1) in consultation with the agency's Office of General Counsel (OGC) an
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