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 late summer to fall 2010, the government filed an Ex Parte Submission of [Redacted] and Related Procedures, Ex Parte Submission of Amended Minimization Procedures, and Request for an Order Approving [Redacted] for DNI/AG 702(g). In its submission, the government had requested authorization to allow the NSA to include “US persons reasonably believed to be located outside the United States” as part of its targeting procedures. Moreover, the government requested to “retain, process, and disseminate any communication acquired” on US persons or domestic data it found “to the extent reasonably necessary to counter any imminent threat to human life or the national security that is related to the target.”

In a Briefing Order, FISC Judge John D. Bates found that this raised possible Fourth Amendment concerns and that the government failed to provide the court with “an adequate legal basis upon which to undertake this review and make the required findings.” Judge Bates ordered the government to submit a Memorandum of Law providing a legal justification for its request. The government submitted its Memorandum of Law, and Judge Bates then discussed the issues with government representatives. After their discussion, the Attorney General and ODNI filed two amendments to its submissions that effectively reverted the use of targeting and minimization procedures to what they had been prior to the 2010 submissions (and which the court had previously approved). Based on the amendments, Judge Bates approved the government’s submission, emphasizing that his approval was conditioned on the fact that the government’s targeting procedures were limited to non-US persons outside of the US.

Lisa Limb - 03/14/2018


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