In June 2017, in response to a lawsuit filed by the Electronic Frontier Foundation (NS-CA-0027 in this Clearinghouse), the federal government released eighteen previously classified opinions by the Foreign Intelligence Surveillance Court (FISC). One of the opinions declassified involved this case.

Section 702 of the FISA Amendments Act of 2008, 50 U.S.C. § 1881a, 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 2008, the FISC approved the government's certifications for 2008. (Those proceedings are discussed in NS-DC-0072 in this Clearinghouse.) In January 2009, however, the government submitted an "Ex Parte Submission [Redacted] and Related Procedures and Request for an Order Approving [Redacted] and Procedures," where the government made certain corrections relating to its prior certification application and overcollection incidents.

The substance of those corrections are redacted in the declassified opinion but related to the targeting procedures of the certifications and remedial measures the government took in response to overcollection incidents involving the 2008 FAA certifications. Regardless, whatever the content of those corrections were, FISC Judge Mary A. McLaughlin ultimately approved the certification, noting that “in light of the steps taken by the government to address these [overcollection] incidents and prevent similar occurrences,” she was “satisfied” that the targeting and minimization procedures satisfied the requirements of FISA and the Fourth Amendment.

Lisa Limb - 03/08/2018


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