ODNI Releases Three FISC Opinions

By Cody M. Poplin
Wednesday, April 20, 2016, 1:25 PM

The Office of the Director of National Intelligence released three redacted Foreign Intelligence Surveillance Court opinions (FISC) yesterday, respectively on a pen register and trap-and-trace case, Section 702 certifications, and the Government's first application for orders requiring the production of call records under the USA FREEDOM Act.

In the New York Times, Charlie Savage digs into the November opinion of Judge Thomas F. Hogan reauthorizing Section 702 surveillance. In his 80-page opinion, Judge Hogan "rejected a legal challenge to rules permitted FBI agents, when working on domestic criminal cases, to search emails written by Americans that the government intercepted without a warrant in the name of gathering foreign intelligence." Hogan ruled that the searches comply with both the Constitution and the FISA Amendments Act. Hogan did however order the government to begin reporting every time an FBI agent, while working on an ordinary criminal matter, queried the 702 database for an American suspect's private messages and read one of them. The ruling marks the first time that the court reviewed the program after hearing arguments from the newly instituted Amicus Curiae created under the USA Freedom Act.

In a separate part of his opinion, Judge Hogan said that he was "extremely concerned" that the NSA continued to hold data that it was supposed to release, and suggested that NSA analysts "potentially" violated the law by failing to delete the information. Hogan also wrote that he was concerned by the FBI's failure to screen out information protected by attorney-client privilege.

The Los Angeles Times and Politico have more on the opinions.

The opinions and ODNI's summaries and responses are here and below.

Today the Director of National Intelligence (DNI), in consultation with the Attorney General, is releasing in redacted form three opinions of the Foreign Intelligence Surveillance Court (FISC):

The FISC’s June 18, 2015 Memorandum Opinion associated with a pen register and trap-and-trace case

In this case, the Court determined that it was not appropriate to appoint an amicus curiae pursuant to either 50 U.S.C. § 1803(i)(2)(A) or (i)(2)(B), as enacted by the USA FREEDOM Act regarding a novel issue of law for three related reasons.

First, because the USA FREEDOM Act had just been passed and the FISC had not yet appointed the panel of amici called for by the USA FREEDOM Act.

Second, the application was presented as an emergency. And third, the novel issue was of only limited prospective importance because the Government had already terminated the use of the pen register and trap-and-trace device and requested no additional authority to continue its use.

The FISC’s November 6, 2015 Memorandum Opinion and Order regarding the 2015 FISA Section 702 Certifications

In this opinion, after careful consideration of the Government’s proposed Section 702 certifications, the Government’s compliance record (including a thorough review of four specific compliance incidents) over the prior year, and the views of an appointed amicus curiae regarding two interpretations of law, the FISC concluded that the proposed certifications, including the associated targeting and minimization procedures, met all statutory requirements and were consistent with the requirements of the Fourth Amendment.

In its detailed opinion, the FISC reviewed the proposed targeting and minimization procedures, which incorporated several modifications. A number of these modifications implemented recommendations made by the Privacy and Civil Liberties Oversight Board (PCLOB) in its 2014 report on the Section 702 program.

These modifications to the targeting and minimization procedures included:

  1. Codifying the existing requirement that NSA must make a particularized, fact-based assessment that each target is expected to possess, receive, or communicate foreign intelligence information and requiring documentation regarding this assessment;
  2. Enhancing the protection for attorney-client communications in the NSA, CIA, and FBI minimization procedures;
  3. Clarifying documentation or other requirements with respect to the querying of Section 702 information using the identifier of a United States person. See Opinion at 10-36.

The FISC held that the modified targeting and minimization procedures remained consistent with the requirements of FISA and the Fourth Amendment. See Opinion at 77.

Additionally, utilizing a new provision of FISA enacted as part of the USA FREEDOM Act, the FISC appointed an amicus curiae to offer further analysis on two interpretations of law.

First, the amicus was appointed to address whether the ability to query Section 702-acquired information using a United States person identifier was consistent with FISA and the Fourth Amendment. After extensive scrutiny and consideration of the views of the amicus, the FISC reaffirmed its analysis that the querying provisions, which permit the use of United States person identifiers to identify both foreign intelligence information and, in the case of the FBI, evidence of a crime, comply with both the statute and the Constitution. See Opinion at 24-36 and 39-45. Because the procedures allow for queries seeking both foreign intelligence information and evidence of a crime, the Court focused in particular on the FBI’s query provisions, ultimately determining that these provisions, “strike a reasonable balance between the privacy interests of United States persons and persons in the United States … and the [G]overnment’s national security interests.” Opinion at 43.

Second, the amicus was appointed to assess provisions in the minimization procedures designed to preserve for litigation purposes communications otherwise subject to destruction. The Court held that these provisions “strike a reasonable and appropriate balance between the retention limitations reflected in FISA and the [G]overnment’s need to comply with its litigation-related obligations.” See Opinion at 16.

Finally, in the course of the Fourth Amendment analysis the FISC conducts each time it reviews a Section 702 certification, the FISC assessed the Government’s record of compliance with the targeting and minimization procedures in the prior year. As part of this review, the FISC considered several compliance incidents, individually analyzing four specific incidents in detail. See Opinion at 45-77. In addition, the Court expressed concern that the Government had not previously been clearer regarding the scope of purges in certain NSA systems, which the Court viewed as a lack of candor. The Government has informed the Court that there was no intent to leave the FISC with a misimpression or misunderstanding, and it has acknowledged that its prior representations could have been clearer.

The issue was addressed and the Government will continue to ensure that its representations are clear and fully describe its activities in implementing its Section 702 authorities. The FISC ultimately determined that its “overall assessment of the implementation of, and compliance with, the targeting and minimization procedures permits a finding that these procedures, as implemented, satisfy the applicable statutory requirements.” Opinion at 47. The FISC imposed several additional reporting requirements to facilitate its ongoing oversight of the Government’s implementation of Section 702. See Opinion at 78.

The FISC’s December 31, 2015 Memorandum Opinion, approving the Government’s first application for orders requiring the production of call detail records under the new business records standards set forth in Sections 101 and 103 of the USA FREEDOM Act

On June 2, 2015, Congress passed and President Obama signed the USA FREEDOM Act of 2015, which, among other things, both banned bulk collection under Section 215 of the USA PATRIOT Act and other legal authorities and adopted a new legal mechanism to allow the government to obtain call detail records on an ongoing basis pursuant to individual orders from the FISC approving the use of specific numbers for such queries.

To ensure an orderly transition to this new mechanism, the USA FREEDOM Act provided for a 180-day transition period during which the National Security Agency (NSA) bulk telephony metadata program was permitted to continue. As has been previously publicly stated, the Government began to use the new legal mechanism to obtain call detail records after the authority for the old NSA bulk telephony program expired on November 29, 2015.

In the opinion released today, the FISC explained the analysis it undertook to approve the Government’s first application to obtain call detail records under this new authority.

The Court held that the Government’s application included “specific selection terms,” which for purposes of this type of application must be a term that “specifically identifies an individual, account, or personal device.” 50 U.S.C. § 1861(k)(4)(B).

The Court further held that the Government’s application included the required statement of facts showing that there were reasonable grounds to believe that the call detail records sought to be produced based upon the specific selection terms were relevant to an authorized international terrorism investigation, and that the specific selection terms were associated with a foreign power, or an agent of a foreign power, engaged in international terrorism.

The Court held that in making this relevancy showing, FISA requires the Government to demonstrate the relevancy to an authorized international terrorism investigation of the call detail records that were in contact with the approved specific selection term (referred to as the “first hop” records), but does not require the Government to make a separate relevancy showing with the secondary production of call detail records of telephone numbers identified in the first hop (referred to as the “second hop” records).

Finally, the FISC approved the Government’s proposed minimization procedures, which among other things contain privacy protections related to the retention and dissemination of the information acquired from the call detail records.