Case: Statistical Transparency Report Regarding Use of National Security Authorities (April 2019)

On April 30, 2019, the Office of the Director of National Intelligence (ODNI), consistent with the Foreign Intelligence Surveillance Act of 1978, as amended by U.S.C. § 1873(b), released this report presenting statistics on the government's use national security authorities. The report covered statistics pertaining to FISA Probable Cause Authorities, FISA Section 702, Use of FISA in Criminal Proceedings, Pen Register and Trap and Trace Devices, Business Records, and National Security Letters.

As to FISA Probable Cause Court Orders and Targets, in 2018 there were 1,184 orders, with 12% estimated to be U.S. persons.

As to Section 702 Targets, FISC could issue a single order to approve more than one certification. In 2018, there was 1 Section 702 Order. The number of actual certifications was redacted, but the estimated number of targets of non U.S. persons was 164,770, up from the estimated number of 129,080 in 2017.

Additionally, the report outlined statistics for U.S. person queries of raw, Section 702-acquired data. For U.S. Person Query Terms, there were 9,637 estimated "search terms concerning a known U.S. person used to retrieve the unminimized contents of communications obtained under Section 702" in 2018. This statistic did not include queries obtained by the FBI. Furthermore, in 2018 there were 14,374 estimated number of queries concerning a known U.S. person for metadata information. Again, this statistic did not include queries conducted by the FBI. In 2018 there were no instances in which the FBI opened an investigation of a U.S. person who was not considered to be a threat to national security based on a Section 702 authorization.

The report also outlined data concerning the release of identities of U.S. persons. The NSA masked U.S. person identity, but in certain circumstances the NSA deemed that it was appropriate to include in the report the U.S. person's identity. In 2018 there were 4,495 Section 702 reports where U.S. person identities were masked or included, and of those 1,379 openly included the identities of the U.S. persons. These statistics did not include FBI use of the reports. There were 16,721 instances in which the NSA unmasked U.S. person identities in response to a request from a different agency in 2018.

The report then moved onto FISA use in criminal proceedings. In 2018, there were 14 instances in which the United States or a State provided notice that they intended to use as evidence information obtained from FISA. This statistic only includes information that was actually used in the prosecution, not information that was given to the governments.

The report then outlined statistics pertaining to the use of pen register and trap and trace (PR/TT) devices for foreign intelligence. These devices captured phone numbers dialed and received. In 2018, there were 34 orders in which there was authorization for a PR/TT device. This statistic does not include modified or amended orders (which could stand in for renewal orders). There were 29 estimated targets of such orders, and of these 14 were estimated to be U.S. persons. An estimated 48.3% of the targets were U.S. persons. There were 132,690 estimated identifiers used to communicate information collected (such as a phone number or email address).

FISA could also obtain information concerning foreign intelligence information or protection against terrorism through Title V, commonly referred to the "Business Records" provision of FISA. The information did not necessarily relate only to business records, it could detail call records and other sources of information as well. In 2018, there were 56 orders issued under this provision for an estimated 60 targets. These orders provided an estimated 214,860 number of unique identifiers (referring to phone numbers or email addresses) collected. Call detail records (CDR) or "call event metadata" could be obtained from telecommunication providers through this provision as well. This information could be a phone number, some sort of telephone identifier, or the time of the duration of a call. CDR's could not provide the content of any communication, including names, addresses, or GPS information. In 2018, there were 14 CDR orders with an estimated 11 targets of such orders. These targets led to an estimated 434,238,543 CDR's received. There were 164,682 search terms in 2018 that included information concerning a U.S. person that were used to query any database of CDR's.