University of Michigan Law School
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Case Name Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (March 2019) (702) NS-DC-0135
Docket / Court N/A ( 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, 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 ... read more >
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.

On March 4, 2019, the Director of National Intelligence, with the Department of Justice, released a redacted 18th Semiannual Assessment of Compliance with Procedures and Guidelines issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act. The assessment detailed the measures the government took to comply with FISC approved targeting and minimization procedures.

The report was compiled in October 2018, detailing measures taken from December 1, 2016 to May 31, 2017. The assessment was based on compliance assessments conducted by the DOJ's National Security Division (NSD) and the Office of the Director of National Intelligence (ODNI). The report concluded that "the agencies have continued to implement the procedures and follow the guidelines in a manner that reflects a focused and concerted effort by agency personnel to comply with the requirements of Section 702."

Much of the report detailing statistical data was redacted. This includes statistical data relating to compliance incidents, where the report reads "there were a total of [redacted] compliance incidents that involved noncompliance with NSA's targeting or minimization procedures and [redacted] compliance incidents . . . for a total of [redacted] incidents involving NSA and/or FBI procedures." The actual number of compliance incidents (meaning incidents of noncompliance) was redacted, but the compliance incident rate was .37%, which was compiled by dividing the number of incidents by average facilities subject to acquisition. This was a reduction from .88% in the prior reporting period. The report concedes that .37% may not adequately represent compliance in the program in that a single incident could have broad effects and involve multiple facilities.

39.1% of these infractions were minimization issues, where the NSA failed to comply with its minimization procedures. 24.9% of the infractions were tasking issues, where noncompliance with the targeting procedures resulted in an error in the initial tasking of the facility.

The report then detailed the effect of human error. Typographical and other similar errors accounted for about 11% of the tasking errors, which was an increase from 6% in the last period. 27% of the detasking delays from this period were caused by inadvertent errors, such as misunderstanding the rules or inadvertent miscommunication. 14% of compliance incidents were the result of documentation errors. There were also instances where the NSA failed to adequately determine the location of a target.

As to minimization errors, about 92% involved improper queries, of which about 69% involved U.S. persons without adequate approval.

The report concluded that there were no instances of intentional or willful attempts to violate the Acts in the compliance incidents addressed in the report.

Cedar Hobbs - 02/16/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
General
Confidentiality
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Causes of Action FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Filed 2018
Case Ongoing No
Court Docket(s)
No docket sheet currently in the collection
General Documents
FISC
10/01/2018
Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of The Foreign Intelligence Surveillance Act, Submitted by the Attorney General and the Director of National Intelligence
NS-DC-0135-0001.pdf | Detail

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