ODNI Releases April 2024 FISC Opinion on FISA 702 Recertifications

November 12, 2024

WASHINGTON, D.C. – Today, the Office of the Director National Intelligence (ODNI), in consultation with the Department of Justice (DOJ), is publicly releasing an April 2024 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 April 2024 FISC Opinion was issued prior to the re-authorization of Section 702 on April 20, 2024, and therefore does not discuss the Reforming Intelligence and Securing America Act (RISAA) and how the government is implementing the new legislation.  Among other things, this opinion states that the Federal Bureau of Investigation’s (FBI) continued 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 proposed no changes to any of the targeting, minimization, and querying procedures except for some additions to the FBI querying procedures that provided more robust privacy protections, including for U.S. persons. The FISC approved the certifications in the above-referenced Memorandum Opinion and Order, issued on April 4, 2024.

Some of the topics addressed by the April 2024 FISC opinion include:

FBI Compliance: The FISC finds that FBI’s querying procedures have been revised in ways that improve compliance and enhance privacy protections. (Pages 13, 21–24)

  • For example, the 2024 FBI querying procedures require users to enter a “written statement of the specific factual basis to believe that the query is reasonably likely to retrieve foreign intelligence or evidence of a crime” prior to querying Section 702 information “using a United States person query term.” See § IV.B, FBI Querying Procedures.
  • The 2024 FBI querying procedures also require prior approval for three categories of queries presenting heightened privacy concerns:
  1. Queries using a term that is reasonably believed to identify a U.S. elected official, appointee of either the President or a state or territorial Governor, U.S. political candidate, U.S. political organization or individual prominent in such organization, or U.S. news media UNCLASSIFIED UNCLASSIFIED organization or member of the U.S. news media, See § IV.D.1, FBI Querying Procedures.
  2. Queries using a term reasonably believed to identify a U.S. religious organization or individual prominent in such organization, or individuals, organizations, or groups reasonably believed to have a U.S. academic nexus. See § IV.D.2, FBI Querying Procedures.
  3. Queries using “FBI’s batch query technology or successor tool.” See § IV.D.3, FBI Querying Procedures.
  • The FISC reviewed the past U.S. person query incidents and concluded that “[t]raining and oversight efforts should continue to prioritize proper application of this [query] standard by the FBI,” (Page 42).
  • The FISC also noted the continuing decline in the number of U.S. person queries conducted by the FBI (Pages 46 and 72).

Central Intelligence Agency (CIA) Capability: The FISC considered a new CIA capability that is designed to enable the more efficient processing of Section 702 information in a manner that does not involve a query and found that it is likely to be implemented in a manner consistent with statutory and Fourth Amendment requirements. (Pages 32–36)

APR 2024 FISC Opinion

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