September 29, 2015
The Executive Branch has publicly released various documents related to Section 702 of the Foreign Intelligence Surveillance Act, with appropriate redactions to protect national security information. These documents are available at the website of the Office of the Director of National Intelligence and ODNI’s public website dedicated to fostering greater public visibility into the intelligence activities of the U.S. Government, IC on the Record.
Section 702 was enacted as part of the FISA Amendments Act of 2008. Section 702 authorizes the targeting of non-U.S. persons reasonably believed to be outside the United States to acquire foreign intelligence information. This collection authority is one of the most significant tools in the Intelligence Community’s arsenal for the detection, identification, and disruption of terrorist threats to the United States and around the world.
Section 702 incorporates substantial protections to ensure that the surveillance activities conducted pursuant to it are properly targeted and that the retention and use of the collected information is appropriately limited. And, as noted in the Intelligence Community’s January 2015 Signals Intelligence Reform Report, the Intelligence Community is taking steps to further strengthen these protections.
Included in this release is a redacted copy of a complete Section 702 certification filing from 2014. Certifications like this one are the key documents governing the Intelligence Community’s surveillance activities under Section 702.
Section 702 permits the Attorney General and the Director of National Intelligence (DNI) to approve annual certifications authorizing the Intelligence Community to target non-U.S. persons reasonable believed to be located outside of the United States to acquire certain categories of foreign intelligence information. Each certification is supported, as appropriate, by affidavits of appropriate national security officials attesting to how the Intelligence Community will conduct the proposed surveillance.
Under Section 702, instead of identifying in the certification the specific individuals or communication facilities (e.g., telephone numbers) to be targeted, the Attorney General and the DNI adopt targeting procedures that explain in significant detail how the Intelligence Community will ensure that the proposed surveillance will be limited to targeting non-U.S. persons reasonable believed to be located outside the United States for the purpose of acquiring foreign intelligence information discussed in the certification and accompanying affidavits. Because these targeting procedures explain in depth how the Intelligence Community decides whether to target a person, the specifics of these targeting procedures are classified.
The certification package also contains minimization procedures, which explain in similar detail how the Intelligence Community limits its acquisition, retention, and dissemination of the information collected under Section 702. The Executive Branch has declassified significant portions of these minimizations procedures and they are available below.
Government’s Ex Parte Submission of Reauthorization Certifications
Affidavit of Acting Director NSA
FBI Section 702 Targeting Procedures *
NSA Section 702 Targeting Procedures *
Letter to Judge Walton 18 March 2014
Letter to Judge Hogan 29 May 2014
Letter to Judge Hogan 25 July 2014
Letter to Judge Hogan 30 July 2014
2014 NSA Section 702 Minimization Procedures
2014 FBI Section 702 Minimization Procedures
2014 CIA Section 702 Minimization Procedures
2014 NCTC Section 702 Minimization Procedures
* Because these targeting procedures, as well as an associated list of foreign powers subject to targeting under this certification (Exhibit F), explain in depth how the Intelligence Community decides whether to target a person, the content of these documents remains classified except for the document titles.
Under Section 702, the Attorney General and the DNI must submit each Section 702 certification for a thorough review and approval by the Foreign Intelligence Surveillance Court (FISC). In deciding whether to approve a certification, the FISC must assess whether the Intelligence Community’s targeting procedures “are reasonably designed” to “ensure” that an authorized acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and to prevent the intentional acquisition of wholly domestic communications.
The FISC must also determine that the Intelligence Community’s minimization procedures are “specific” and that they are “reasonably designed” to appropriately limit the acquisition, retention, and dissemination of any non-publicly available U.S. person information that may be collected consistent with the needs of the United States to obtain, produce, and disseminate foreign intelligence information. Additionally, each time the Government submits a Section 702 certification, the FISC must determine that the proposed surveillance complies with the Fourth Amendment.
Section 702 requires that the FISC issue a written opinion explaining its approval or disapproval of a certification. The Executive Branch is releasing a redacted copy of the FISC opinion associated with the 2014 certification package described above. In its opinion, the FISC reviewed the certification being released today, as well as the Government’s implementation of Section 702 over the prior year. The FISC held that the proposed certification complied with all statutory requirements and was consistent with the Fourth Amendment. The FISC also imposed several additional reporting requirements to facilitate its ongoing oversight of the Government’s implementation of Section 702.
FISC Memorandum Opinion and Order 26 August 2014