September 11, 2020
Today, the ODNI, in consultation with the Department of Justice, releases a June 25, 2020, opinion by the Foreign Intelligence Surveillance Court (FISC) evaluating and approving limited circumstances under which the Government may temporarily retain, use, or disclose information that was unlawfully acquired pursuant to a FISC order.
On December 9, 2019, the Government advised the FISC that it was sequestering collection associated with Foreign Intelligence Surveillance Act (FISA) applications targeting Carter W. Page (Page) based upon its determination that at least the third and fourth FISA applications targeting Page lacked sufficient predication to establish probable cause that Page was acting as an agent of a foreign power. This action was taken following a Department of Justice Office of Inspector General (OIG) review that identified material errors and omissions with respect to applications concerning Mr. Page.
While the Government strictly limited access to the Page FISA collection, the Government sought to temporarily retain this collection for the sole purposes of reviewing and remediating the issues revealed by the OIG report, as well as for any related investigations or litigation regarding the Government’s conduct. On January 7, 2020, the FISC ordered the Government to explain why any retention, use, or disclosure of information collected under the Page FISA applications was necessary and lawful.
Specifically, 50 U.S.C. § 1809(a)(2) and 1827(a)(2) criminalizes the intentional use and disclosure of information acquired by unauthorized electronic surveillance or physical search that was conducted under the color of a FISA authorization. In prior opinions, however, the FISC recognized a limited exception to the language of 50 U.S.C. § 1809(a)(2), for “actions that are necessary to mitigate or prevent the very harms at which [this section] is addressed,” such as instances where use or disclosure may be “necessary to avoid similar instances of overcollections.” ODNI previously reviewed and released to the public these earlier FISC decisions, which are available here and here.
In its June 25, 2020, opinion, the FISC set parameters for the temporary retention, use, and disclosure of information acquired pursuant to the Page FISA applications with respect to: (1) ongoing Freedom of Information Act litigation with third-parties, (2) ongoing and potential civil litigation initiated by Mr. Page, (3) a review of FBI personnel’s conduct in the Page investigation, (4) Department of Justice Office of Inspector General monitoring of implementation of recommendations from its report, and (5) review of the conduct of government personnel in the Page investigation and the broader “Crossfire Hurricane” investigation of Russian interference in the 2016 Presidential election. The Government did not seek nor did the FISC authorize the retention, use, or disclosure of the relevant FISA information for intelligence purposes.
The FISC’s June 25, 2020 opinion is available at the link below and also in full-text searchable format on Intelligence.gov.
June 2020 FISC Opinion (released pursuant to 50 U.S.C. § 1872)