University of Michigan Law School
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Case Name [Caption Redacted] Government’s Ex Parte Submission of Reauthorization Certifications and Related Procedures, Amended Certifications, and Request for an Order Approving Such Certifications (September 2016) NS-DC-0113
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)
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.

In September 2016, DOJ and ODNI submitted their annual certifications for 2016. In October 2016, however, DOJ and ODNI reportedly received information about certain Section 702 compliance incidents, and the DOJ and ODNI reported this additional information to the FISC. The NSA also self-reported the information to oversight bodies, as required by law. The ODNI claimed that these compliance incidents involved the NSA’s inadvertent use of U.S.-person identifiers as search terms to query the NSA’s database of “upstream” internet collection, acquired pursuant to Section 702.

Historically, the NSA has been authorized to acquire communications to, from, or “about” a Section 702 target through its upstream internet collection. In other words, if Bob was considered a Section 702 target, then the NSA could acquire communications to Bob, from Bob, or communications that discuss Bob. But because “about” collection might not involve communication with a non-U.S. person located abroad, this collection permitted the NSA to collect tens of thousands of purely domestic emails. (In fact, in 2011, the FISC held that “about” collection was unconstitutional without more procedural safeguards. See NS-DC-0074 in this Clearinghouse.) Because FISA only permits surveillance targeting the communications of non-U.S. persons located abroad, NSA analysts are not permitted use U.S. persons as search terms to query “about” communications.

Generally, the FISC is required to complete its review of the annual Section 702 certifications within 30 days of submission. But after DOJ and ODNI informed the FISC about the compliance incidents, FISC Judge Rosemary Collyer twice extended the time to review the certifications so that the FISC could receive additional information about the compliance incidents and the government’s plan to address them.

According to ODNI, during these extension periods, the NSA undertook a broad review of its Section 702 program. After considerable evaluation of the program and available technology, the NSA determined that it would no longer collect communications “about” a target:
After considerable evaluation of the program and available technology, NSA has decided that its Section 702 foreign intelligence surveillance activities will no longer include any upstream internet communications that are solely "about" a foreign intelligence target. Instead, this surveillance will now be limited to only those communications that are directly "to" or "from" a foreign intelligence target. These changes are designed to retain the upstream collection that provides the greatest value to national security while reducing the likelihood that NSA will acquire communications of U.S. persons or others who are not in direct contact with one of the Agency's foreign intelligence targets.
Therefore, in March 2017, the government amended the pending certifications, amending the Section 702 targeting and minimization procedures for the NSA to authorize only the acquisition of communications to or from a Section 702 target. In addition, the revised minimization procedures required NSA to delete the vast majority of previously acquired upstream Internet communications, including those to or from Section 702 targets.

Based on these amended certifications, the FISC determined that these changes sufficiently addressed the compliance incidents involving the inadvertent use of U.S.-person identifiers as search terms. Judge Collyer 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." She ultimately determined, however, that these new targeting and minimization procedures were consistent with FISA and the Fourth Amendment.

John He - 05/14/2017


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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
General
Search policies
Terrorism/Post 9-11 issues
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
Defendant(s) United States
Plaintiff Description N/A
Class action status sought No
Class action status granted No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None
Source of Relief None
Case Closing Year 2017
Case Ongoing No
Docket(s)
No docket sheet currently in the collection
General Documents
[Exhibit A] Procedures Used by the National Security Agency for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702...
NS-DC-0113-0015.pdf | External Link | Detail
Date: 07/10/2015
Source: Office of the Director of National Intelligence
Affidavit of James B. Comey: Direction, Federal Bureau of Investigation
NS-DC-0113-0008.pdf | External Link | Detail
Date: 09/17/2016
Source: Office of the Director of National Intelligence
Certification of the Director of National Intelligence and the Attorney General Pursuant to Subsection 702(g) of the Foreign Intelligence Surveillance
NS-DC-0113-0003.pdf | External Link | Detail
Date: 09/21/2016
Source: Office of the Director of National Intelligence
[Exhibit D] Minimization Procedures Used by the Federal Bureau of Investigation in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended
NS-DC-0113-0009.pdf | External Link | Detail
Date: 09/21/2016
Source: Office of the Director of National Intelligence
Affidavit of the Director of the National Counterterrorism Center
NS-DC-0113-0011.pdf | External Link | Detail
Date: 09/26/2016
Source: Office of the Director of National Intelligence
[Exhibit G] Minimization Procedures Used by the National Counterterrorism Center in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended
NS-DC-0113-0012.pdf | External Link | Detail
Date: 09/26/2016
Source: Office of the Director of National Intelligence
Affidavit of Admiral Michael S. Rogers, United States Navy Director, National Security Agency
NS-DC-0113-0014.pdf | External Link | Detail
Date: 09/26/2016
Source: Office of the Director of National Intelligence
Government's Ex Parte Submission of Reauthorization Certifications and Related Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order Approving Such Certifications and Amended Certifications
NS-DC-0113-0004.pdf | External Link | Detail
Date: 09/26/2016
Source: Office of the Director of National Intelligence
Affidavit of the Director of the Central Intelligence Agency
NS-DC-0113-0006.pdf | External Link | Detail
Date: 09/26/2016
[Exhibit E] Minimization Procedures Used by the Central Intelligence Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended
NS-DC-0113-0007.pdf | External Link | Detail
Date: 09/26/2016
Source: Office of the Director of National Intelligence
[Exhibit C] Procedures Used by Federal Bureau of Investigation for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702...
NS-DC-0113-0010.pdf | External Link | Detail
Date: 09/26/2016
Source: Office of the Director of National Intelligence
Order (FISC)
NS-DC-0113-0005.pdf | Detail
Date: 10/26/2016
Source: Office of the Director of National Intelligence
[Exhibit A] Procedures Used by the National Security Agency for Targeting Non-United States Persons Reasonably Believed to be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702...
NS-DC-0113-0013.pdf | External Link | Detail
Date: 03/29/2017
Source: Office of the Director of National Intelligence
[Exhibit B] Minimization Procedures Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended
NS-DC-0113-0016.pdf | External Link | Detail
Date: 03/30/2017
Source: Office of the Director of National Intelligence
Memorandum Opinion and Order (FISC)
NS-DC-0113-0001.pdf | External Link | Detail
Date: 04/26/2017
Source: Office of the Director of National Intelligence
Press Release
NS-DC-0113-0002.pdf | External Link | Detail
Date: 04/28/2017
Source: Office of the Director of National Intelligence
Judges Collyer, Rosemary M. (FISC, D.D.C.)
NS-DC-0113-0001 | NS-DC-0113-0005
Defendant's Lawyers Carlin, John P. (District of Columbia)
NS-DC-0113-0004
Evans, Stuart J. (District of Columbia)
NS-DC-0113-0004
Lynch, Loretta (New York)
NS-DC-0113-0007 | NS-DC-0113-0009 | NS-DC-0113-0010 | NS-DC-0113-0012 | NS-DC-0113-0015
Sessions, Jeff (District of Columbia)
NS-DC-0113-0013 | NS-DC-0113-0016

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