IC ON THE RECORD

Section 702 of the Foreign Intelligence Surveillance Act is a critical tool for protecting our national security. It enables the U.S. Intelligence Community to collect, analyze, and share foreign intelligence information on individual terrorists, weapons proliferators, hackers, and other foreign intelligence targets. Take a deeper look at how we use FISA Section 702, how privacy and civil liberties safeguards are built into our work, and how our use of these tools is overseen by all three branches of government.

Resources:

• The Basics of Section 702
• Civil Liberties & Privacy Protections in 702
• Process for Section 702 Collection
• The Value of Section 702

Release of 2021 FISA Section 702 FISC Order

July 21, 2023

Consistent with the Principles of Intelligence Transparency for the Intelligence Community, ODNI, in consultation with DOJ, is also today making publicly available, with redactions, a 2021 FISC Order that examined certain FBI compliance errors involving the querying of U.S. person information. The errors discussed in the 2021 FISC Order preceded the FBI remedial reforms discussed in the 2023 FISC Opinion, which were initially deployed during the summer of 2021, and the 2021 FISC Order thus does not reflect the current status of FBI compliance. Moreover, the compliance issues discussed in the 2021 FISC Order are some of the same compliance issues discussed in the FISC’s April 2022 Section 702 Opinion, which the ODNI released on May 19, 2023. See 2022 Mem. Op. at 26–28. Nonetheless, the Government has chosen to make the 2021 FISC Order publicly available to provide the public with additional information about Section 702.

Additional Information

The documents are posted in full-text searchable format on intel.gov.

2021 FISA Section 702 FISC Order

Background on Section 702

Section 702 was enacted as part of the FISA Amendments Act of 2008 (FAA) and most recently reauthorized by the FISA Amendments Reauthorization Act of 2017. Section 702 permits the Attorney General and the DNI to jointly authorize, through certifications, the targeting of (i) non-U.S. persons (ii) who are reasonably believed to be located outside the United States (iii) to acquire foreign intelligence information. These certifications are accompanied by targeting procedures, minimization procedures, and querying procedures that are each designed to ensure that the Government’s collection is appropriately targeted against non-United States persons located overseas who may possess or are likely to communicate foreign intelligence information and that any such collection is appropriately handled in a manner that protects privacy and civil liberties.

Under Section 702, the FISC reviews the certifications and accompanying documents to ensure that they meet all the requirements of Section 702 and are consistent with the Fourth Amendment. The Court’s review is not limited to the procedures as written, but also includes an examination of how the procedures have been and will be implemented. Accordingly, as part of its review, the FISC considers the compliance incidents reported to it by the Government through notices and reports.

Additional Information about FISA Section 702 and how the Intelligence Community uses its surveillance authorities may be found in the FISA Resource Library.

Release of Documents Related to the 2023 FISA Section 702 Certifications

July 21, 2023

Today, the Office of the Director National Intelligence (ODNI), in consultation with the Department of Justice (DOJ), is publicly releasing a 2023 Foreign Intelligence Surveillance Court (FISC) opinion, with redactions, which approves the annual certifications made by the Director of National Intelligence (DNI) and the Attorney General (AG) pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the associated targeting, minimization, and querying procedures. The 2023 FISC Opinion states that the Federal Bureau of Investigation’s (FBI’s) recent implementation of remedial measures has improved the FBI’s compliance with the query standard.

Under FISA Section 702, the Government may annually submit one or more certifications to the FISC which specify the categories of foreign intelligence that the Intelligence Community (IC) can collect using FISA Section 702. With any submitted certifications, the Government must also submit targeting, minimization, and querying procedures, which ensure that FISA Section 702 is used only to acquire foreign intelligence information from foreign persons located outside the United States; safeguard any U.S. person information incidentally acquired; and govern the querying of unminimized information that is lawfully collected, respectively. The Government submitted those documents, as well as supporting affidavits from the Directors of the National Security Agency (NSA), FBI, Central Intelligence Agency (CIA), and National Counterterrorism Center (NCTC), in March 2023. The FISC approved the certifications in the above-referenced Memorandum Opinion and Order, issued on April 11, 2023.

To provide the public with additional information about the Government’s use of Section 702, and pursuant to public interest declassification under section 3.1(d) of Executive Order 13526, the DNI has declassified that there are three Certifications under Section 702, covering the following categories of foreign intelligence: (1) foreign governments and related entities, (2) counterterrorism, and (3) combatting proliferation. The DNI also declassified the fact that NSA uses FISA Section 702 to support the federal government’s vetting, for counterterrorism purposes, of non-U.S. persons who are being processed for travel to the United States or a benefit under U.S. immigration laws.

 The 2023 FISC Opinion addresses several other issues.

• FBI Compliance: The 2023 FISC Opinion compares compliance incidents during the most recent certification period with preceding periods, assessing the strength of the recent remedial measures FBI implemented to bolster compliance with its querying procedures. While the FISC notes that there were reported errors during the recent certification period, the 2023 FISC Opinion and Order highlights the remedial measures made within FBI systems and updated training, guidance, and clarifications to FBI’s querying procedures the FBI implemented to address its query compliance issues before ultimately concluding that “there is reason to believe that the FBI has been doing a better job in applying the querying standard.” See id. at 87. Overall, the FISC calculates FBI’s rate of noncompliance with the FISA querying standard during this period at approximately 1.8%, see id. at 85, and the Court ultimately approves FBI’s querying procedures, “[g]iven recent indications that FBI is improving its implementation of Section 702 querying requirements.” See id. at 93.

• Modification to NSA’s procedures: The 2023 FISC opinion also addresses NSA’s querying and minimization procedures, which include a modification concerning travel or immigration vetting in order to determine if non-U.S. person individuals have connections to international terrorism. The FISC concluded that the proposed modifications to NSA’s procedures were consistent with both the statutory requirements and the Fourth Amendment. See Op. at 43–67 (consistent with FISA), 76–81 (consistent with the Fourth Amendment).

• Processing: The FISC also approved separate modifications to NSA’s minimization and querying procedures that clarified “processing” and further distinguish processing from “querying.” See id. at 29-43 (consistent with the statute), 75–76 (consistent with the Fourth Amendment). “Processing” of data is an action that converts information into an intelligible form or organizes information by, for example, labeling or indexing data, prior to an analyst conducting a query. In many cases, processing is a necessary step before an analyst can even run a query against collected data.

Additional Information

The documents are posted in full-text searchable format on intel.gov.

FISC 2023 FISA § 702 Certifications Opinion, April 11, 2023

2023 Targeting Procedures

(released pursuant to the IC’s Principles of Transparency)

• FBI’s 2023 FISA § 702 Targeting Procedures
• NSA’s 2023 FISA § 702 Targeting Procedures

2023 Minimization Procedures

(released pursuant to 50 U.S.C. § 1881a(e))

• CIA’s 2023 FISA § 702 Minimization Procedures
• FBI’s 2023 FISA § 702 Minimization Procedures
• NCTC’s 2023 FISA § 702 Minimization Procedures
• NSA’s 2023 FISA § 702 Minimization Procedures
• NSA’s 2023 FISA § 702 Amended Minimization Procedures

2023 Querying Procedures

(released pursuant to the IC’s Principles of Transparency)

• CIA’s 2023 FISA § 702 Querying Procedures
• FBI’s 2023 FISA § 702 Querying Procedures
• NCTC’s 2023 FISA § 702 Querying Procedures
• NSA’s 2023 FISA § 702 Querying Procedures

Background on Section 702

Section 702 was enacted as part of the FISA Amendments Act of 2008 (FAA) and most recently reauthorized by the FISA Amendments Reauthorization Act of 2017. Section 702 permits the Attorney General and the DNI to jointly authorize, through certifications, the targeting of (i) non-U.S. persons (ii) who are reasonably believed to be located outside the United States (iii) to acquire foreign intelligence information. These certifications are accompanied by targeting procedures, minimization procedures, and querying procedures that are each designed to ensure that the Government’s collection is appropriately targeted against non-United States persons located overseas who may possess or are likely to communicate foreign intelligence information and that any such collection is appropriately handled in a manner that protects privacy and civil liberties.

Under Section 702, the FISC reviews the certifications and accompanying documents to ensure that they meet all the requirements of Section 702 and are consistent with the Fourth Amendment. The Court’s review is not limited to the procedures as written, but also includes an examination of how the procedures have been and will be implemented. Accordingly, as part of its review, the FISC considers the compliance incidents reported to it by the Government through notices and reports.

Additional Information about FISA Section 702 and how the Intelligence Community uses its surveillance authorities may be found in the FISA Resource Library.

ODNI Releases Intelligence Community Procedures Implementing New Safeguards in Executive Order 14086

July 3, 2023 - The Office of the Director of National Intelligence (ODNI), in coordination with elements of the Intelligence Community (IC), today releases the IC elements’ policies and procedures to implement the privacy and civil liberties safeguards specified in Executive Order 14086 “Enhancing Safeguards for United States Signals Intelligence Activities” (October 7, 2022).

When the President signed Executive Order (EO) 14086, the White House released a statement that the EO “direct[s] the steps that the United States will take to implement the U.S. commitments under the European Union-U.S. Data Privacy Framework (EU-U.S. DPF).” The statement continued that the EO “bolsters an already rigorous array of privacy and civil liberties safeguards for U.S. signals intelligence activities.” EO 14086 added further safeguards for U.S. signals intelligence activities, including that such activities: “take into consideration the privacy and civil liberties of all persons, regardless of nationality or country of residence” and “be conducted only when necessary to advance a validated intelligence priority and only to the extent and in a manner proportionate to that priority.” The Order mandates handling requirements and extends compliance and oversight responsibilities.

The IC elements’ procedures released today further implement the EO’s requirements, and thereby the United States’ commitments under the EU-U.S. DPF. As required by the EO, each IC element developed its procedures in consultation with the Attorney General, the ODNI Civil Liberties Protection Officer (CLPO), and the Privacy and Civil Liberties Board. In implementing the EO’s safeguards, each set of procedures is tailored to the authorities, missions, and responsibilities of the IC elements.

IC Elements’ EO 14086 Procedures

• Central Intelligence Agency (CIA) Procedures
• Drug Enforcement Administration (DEA) Office of National Security Intelligence (ONSI) Procedures
• Federal Bureau of Investigation (FBI) Procedures
• National Reconnaissance Office (NRO) Procedures
• National Security Agency (NSA) Procedures
• Office of the Director of National Intelligence (ODNI) Procedures
• Department of Energy Office of Intelligence and Counterintelligence (IN) Procedures
• Department of Homeland Security (DHS) Office of Intelligence and Analysis (IA) Procedures
• Department of Homeland Security (DHS) United States Coast Guard (USCG) Procedures
• Department of State Bureau of Intelligence and Research (INR) Procedures
• Department of Treasury Office of Intelligence and Analysis (OIA) Procedures

ODNI Releases 10th Annual Intelligence Community Transparency Report 

April 28, 2023

WASHINGTON, D.C. – The Office of the Director of National Intelligence (ODNI) today released the Annual Statistical Transparency Report Regarding the Intelligence Community’s (IC) Use of National Security Surveillance Authorities for Calendar Year 2022 (ASTR). The ASTR provides the public both statistics and contextual information regarding the scope of the government’s use of the Foreign Intelligence Surveillance Act authorities, National Security Letters, and other national security authorities. The report also provides insights into the rigorous, multi-layered oversight framework that governs the IC and which is designed to protect the civil liberties and privacy of persons whose information is acquired pursuant to these national security authorities. The release of this report is consistent with the requirement in the Foreign Intelligence Surveillance Act of 1978, as amended (codified in 50 U.S.C. § 1873(b)), and the IC’s commitment to the Principles of Intelligence Transparency.

This 10th anniversary edition of the ASTR includes a redesigned Executive Summary and has been updated to enhance readability and public understanding. For example, in response to feedback received on last year’s report regarding the first-time publication of FBI’s Section 702 U.S. person query statistics, these statistics are shown in this year’s ASTR using a new methodology that more closely aligns with how other agencies count such queries. Further, to enable meaningful comparison across years, FBI’s data is presented in a side-by-side format, showing statistics calculated under both the prior and new methodologies. Discussion of how the IC safeguards U.S. and other person information has also been added or updated.

This report, along with prior year ASTRs and additional public information on national security authorities are available on www.dni.gov, www.intel.gov, and IContheRecord.

Download: 2023 IC Annual Statistical Transparency Report

ODNI Releases All Remaining FISA Decisions Determined to Contain Significant Construction of Law

August 12, 2022

Today, the Office of the Director of National Intelligence (ODNI), in consultation with the Department of Justice (DOJ), is releasing appropriately redacted versions of all remaining historical opinions and orders of the Foreign Intelligence Surveillance Court (FISC) or Foreign Intelligence Surveillance Court of Review (FISC-R) that have been previously determined to contain significant constructions of law.

Over the last nine years, the Intelligence Community and DOJ have worked together to release to the public significant opinions of the FISC and FISC-R. These efforts resulted in the public release of dozens of court opinions and orders and thousands of pages of released materials, all of which are available on Intel.gov and IContheRecord. In 2015, Congress enacted the USA FREEDOM Act, which requires the Director of National Intelligence to continue to conduct a declassification review of new opinions or orders of the FISC and FISC-R that contain “a significant construction or interpretation of any provision of law,” and “make publicly available to the greatest extent practicable” such opinions or orders (50 U.S.C. § 1872(a)).

In addition to fully complying with this law, ODNI has responded to Freedom of Information Act requests and conducted additional proactive disclosures with respect to FISC and FISC-R opinions that predate the 2015 USA FREEDOM Act. These efforts focused on opinions and orders issued since 2003 that DOJ identified as containing a significant interpretation of law and had also already been provided in classified form to Congress, pursuant to 50 U.S.C. § 1871. As a result, by January 2018, ODNI had released to the public redacted versions of all but seven of these significant opinions or orders. See, for example, releases here and here.

Following an interagency review, and consistent with the Principles of Intelligence Transparency, ODNI determined that redacted versions of all seven remaining opinions and orders could be released. The seven opinions or orders are as follows:

• Document 1—FISC Title I Primary Order
  This FISC order approved a new, classified foreign intelligence surveillance technique targeting a foreign power.
• Document 2—FISA Title I FISC Supplemental Order
  In this order, the FISC required the DOJ to provide a supplemental briefing clarifying the Government’s interpretation of which portion of the multi-part definition of “electronic surveillance” the Government assessed applied to a classified surveillance technique.
• Document 3—FISA Title I FISC Memorandum Opinion and Order
  In this opinion and order, the FISC approved a modification to the Federal Bureau of Investigation’s (FBI) standard minimization procedures to permit the National Counterterrorism Center (NCTC) to access an FBI system that contained FISA information in a manner consistent with NCTC’s own minimization procedures. Unlike the other documents in this release which had been previously withheld due to national security concerns, this opinion was not previously released due to an administrative error.
• Document—4 FISA Title I FISC Primary Order and Document 5—FISA Title I FISC Amendment to Primary Order
  These are two orders associated with a FISC opinion previously released on 22 August 2018. Although previously provided to Congress with that opinion, the FISC’s significant construction of law was made in the previously released opinion, not these orders.
• Document 6—FISA Title V FISC Supplemental Opinion
  In this supplemental opinion, the FISC determined that International Mobile Equipment Identifier numbers and International Mobile Subscriber Identifier numbers could be utilized to initiate contact chaining in a previous intelligence program involving the collection of call detail records. This collection program was terminated after the passage of the USA FREEDOM Act.
• Document 7—FISA Title V FISC Order
  This FISC order approved the ongoing collection of certain business records to protect against international terrorism.

ODNI Releases 23rd Joint Assessment of Section 702 Compliance

July 18, 2022

The Office of the Director of National Intelligence (ODNI), in consultation with the Department of Justice (DoJ), today released, in redacted form, the 23rd Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“Joint Assessment”), submitted by the Attorney General and the Director of National Intelligence (DNI).  This Joint Assessment covers the timeframe of 01 June 2019 through 30 November 2019.  The DNI released this semiannual assessment proactively, in keeping with the Principles of Intelligence Transparency for the Intelligence Community. 

About the Joint Assessments

The Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 requires the Attorney General and the DNI to assess compliance with Section 702 procedures over each six-month period and to submit their assessments to the Foreign Intelligence Surveillance Court (FISC) and relevant congressional committees, which they do in the Joint Assessments.  A joint team of experts from DoJ and ODNI (the “joint oversight team") conduct these assessments, evaluating how the agencies responsible for implementing Section 702 (National Security Agency [NSA], Federal Bureau of Investigation [FBI], Central Intelligence Agency, and National Counterterrorism Center) implement their authority under Section 702.

The Joint Assessments describe the extensive measures the U.S. Government undertakes to:

• Ensure compliance with FISC-approved targeting, minimization, and query procedures for Section 702;
• Accurately identify, record, and correct errors;
• Take responsive actions to remove any erroneously obtained data; and
• Mitigate the chances that mistakes will recur.

The Joint Assessments provide an overall compliance incident rate that includes all categories of incidents from all of the agencies responsible for implementing Section 702.  However, the overall compliance incident rate is an imperfect proxy insofar as the rate compares the total number of compliance incidents (regardless of their cause) to the average number of tasked facilities (which may be unrelated to the number of certain types of compliance incidents, such as the number of times the acquired data was disseminated or queried improperly).  The assessment, therefore, also provides additional metrics and detailed narratives to assess compliance.

Key Findings of the 23rd Joint Assessment

As detailed in the 23rd Joint Assessment, the joint oversight team found that the agencies continued to implement the procedures in a manner that reflected a focused and concerted effort by Intelligence Community (IC) personnel to comply with the requirements of Section 702.  The team assessed compliance trends, including compliance incident rates; evaluated the impact of the types of incidents that occurred; and considered the agencies’ preventive and remedial compliance actions.

For this reporting period, the overall compliance incident rate was 20.28 percent, a significant increase from the immediately preceding period (6.91 percent) while still remaining below a 2018 high of 33.54 percent.  While the overall compliance incident rate considers all identified errors (for targeting, minimization, and querying) of all the agencies implementing Section 702, the vast majority of compliance incidents during this period continued to be related to a single type of FBI query error.  The number of these FBI query errors increased significantly from the previous reporting period, accounting for a substantial number of compliance incidents.  Specifically, for this reporting period, the FBI query error rate was 36.59 percent, an increase from the prior two reporting periods (13.71 in the 22nd Joint Assessment and 23.94 percent in the 21st Joint Assessment).  These incidents, as well as FBI’s subsequent remedial measures, are discussed in greater detail later in this assessment.  To provide insight on targeting compliance, the assessment also included NSA’s compliance incident rate for targeting decisions, which was 0.14 percent for this reporting period (compared to 0.15 percent for the prior period).

The FISC discussed certain instances of the FBI’s noncompliant queries in its 2018, 2019, and 2020 Section 702 opinions.  In the 2018 opinion, the FISC found that the FBI’s querying procedures were not consistent with Section 702 or the Fourth Amendment in part because they did not require adequate documentation of justifications for U.S. person queries.  In response to the Court’s opinions, the FBI made system modifications necessary to meet query recordkeeping and documentation requirements and provided training on these new modifications.  The previously released December 2019 and November 2020 FISC opinions discussed those measures.  While the 23rd Joint Assessment also discussed those measures, as well as additional remedial measures that the FBI implemented in 2021, the reporting period covered (and thus the incidents discussed) in the 23rd Joint Assessment occurred before the FBI implemented those measures.

Additional Information

ODNI previously released several joint assessments, which are available on IC on the Record and Intel.gov.

23rd Joint Assessment- Dated September 2021: Reporting Period 01 June 2019 – 30 November 2019