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Case Name [Redacted Caption] Gov't Ex Parte Submissions of Reauthorization Certification and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certification and Amended Certifications (November 2015) (702, Hogan, J.) NS-DC-0103
Docket / Court [Redacted] ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Foreign Targeting (702, 703, 704)
Foreign Intelligence Surveillance Court
Case Summary
Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. §§ 1881a et seq., 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 ... read more >
Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. §§ 1881a et seq., 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 NS-DC-0072 in this Clearinghouse.

On July 15, 2015, the government submitted to the FISC certifications executed by the AG and the acting DNI under section 702 of FISA. Each of these certifications generally proposed to continue acquisitions of intelligence information that were being conducted under the 2014 Certification by the FISC. The 2014 certifications re-authorized certifications dating back to 2008.

To summarize, in this opinion, after careful consideration of the Government’s proposed Section 702 certifications, the Government’s compliance record over the prior year, and the views of an appointed amicus curiae, Amy Jeffress (a private lawyer, formerly counsel to Attorney General Eric Holder on national security matters), regarding two interpretations of law, the FISC concluded that the proposed certifications met all statutory requirements and were consistent with the requirements of the Fourth Amendment.

And in more detail: In his opinion, FISC Judge Hogan reviewed the proposed targeting and minimization procedures, which incorporated several modifications. A number of these modifications implemented recommendations made by the Privacy and Civil Liberties Oversight Board (PCLOB) in its 2014 report on the Section 702 program.

These modifications to the targeting and minimization procedures included:
1. Codifying the existing requirement that NSA must make a particularized, fact-based assessment that each target is expected to possess, receive, or communicate foreign intelligence information and requiring documentation regarding this assessment;
2. Enhancing the protection for attorney-client communications in the NSA, CIA, and FBI minimization procedures;
3.Clarifying documentation or other requirements with respect to the querying of Section 702 information using the identifier of a United States person.

Judge Hogan held that the modified targeting and minimization procedures remained consistent with the requirements of FISA and the Fourth Amendment. See Opinion at 77. Additionally, utilizing a new provision of FISA enacted as part of the USA FREEDOM Act, Judge Hogan appointed an amicus curiae (as already said, Amy Jeffress) to offer further analysis on two interpretations of law.

First, the amicus was appointed to address whether the ability to query Section 702-acquired information using a United States person identifier was consistent with FISA and the Fourth Amendment. After extensive scrutiny and consideration of the views of the amicus, Judge Hogan reaffirmed his analysis that the querying provisions, which permit the use of United States person identifiers to identify both foreign intelligence information and, in the case of the FBI, evidence of a crime, comply with both the statute and the Constitution. Because the procedures allow for queries seeking both foreign intelligence information and evidence of a crime, the Court focused in particular on the FBI’s query provisions. Judge Hogan disagreed with Jeffress’s argument that these procedures would allow searches unrelated to national security, holding that the foreign intelligence national security need not be the sole purpose of searches of § 702 as long as it is a significant purpose. The Court reasoned that because the FBI acquires its information from the NSA, the NSA’s prior particularized assessment of each target’s likelihood of receipt or possession of foreign intelligence was sufficient to eliminate the risk of searches yielding unrelated results. Ultimately, Judge Hogan determined that these provisions struck a reasonable balance between the privacy interests and the government’s national security interests.

Second, the amicus was appointed to assess provisions in the minimization procedures designed to preserve for litigation purposes communications otherwise subject to destruction. The FISC {THIS JUDGE OR SOMEONE ELSE?} previously encouraged the government to consider revising these provisions to address preservation of information with more standardized rules, and the government responded by modifying provisions in the NSA and CIA minimization procedures which are included but redacted in the memo. Judge Hogan now held that these modified provisions met the requirements of § 1801(h) and struck a reasonable balance between retention limits in FISA, and the government’s need to comply with litigation obligations.

Additionally, in the course of the Fourth Amendment analysis the FISC conducts each time it reviews a Section 702 certification, Judge Hogan assessed the Government’s record of compliance with the targeting and minimization procedures in the prior year. As part of this review, the Court considered several compliance incidents, individually analyzing several incidents in detail.

Specifically, Judge Hogan described prior redacted incidents where FBI Case agents knew that targets faced federal criminal charges but failed to establish required review teams with no role in the target’s prosecution. The Court {THIS JUDGE OR A DIFFERENT ONE IN A DIFFERENT CASE?} previously responded to the high rate of noncompliance by requiring written assessments of training, guidance, and oversight regarding attorney client communications. The Court now concluded that it was satisfied with the government’s updated procedures.

Judge Hogan also expressed concern that the Government had not previously been clearer regarding the scope of purges in certain NSA systems, which the Court viewed as a lack of candor. The Government has informed the Court that there was no intent to leave the FISC with a misimpression or misunderstanding, and it has acknowledged that its prior representations could have been clearer. The issue was addressed and the Government will continue {FIX THIS} to ensure that its representations are clear and fully describe its activities in implementing its Section 702 authorities.

The Court ultimately determined that its “overall assessment of the implementation of, and compliance with, the targeting and minimization procedures permits a finding that these procedures, as implemented, satisfy the applicable statutory requirements.” Finally, Judge Hogan imposed several additional reporting requirements to facilitate its ongoing oversight of the Government’s implementation of Section 702.

{ADD DAISY CHAINING}

Nina Cahill - 02/14/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Monitoring
Recordkeeping
Reporting
Warrant/order for search or seizure
General
Confidentiality
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Special Case Type
Warrant or subpoena application
Causes of Action FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c
Plaintiff Description Plaintiffs are the Attorney General (AG), through the Department of Justice (DOJ), and the Director of National Intelligence (DNI), through the Office of the Director of National Intelligence (ODNI).
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Warrant/Order allowing surveillance
Source of Relief Litigation
Order Duration 2015 - 2015
Filing Year 2015
Case Closing Year 2015
Case Ongoing No
Docket(s)
No docket sheet currently in the collection
General Documents
Memorandum Opinion and Order [Approving Government's Reauthorization and Amended Certifications] (FISC)
NS-DC-0103-0001.pdf | External Link | Detail
Date: 11/06/2015
Source: Office of the Director of National Intelligence
Judges Hogan, Thomas Francis (FISC, D.D.C.)
NS-DC-0103-0001

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