FISA: 702 Collection
Summary: The FISA Amendments Reauthorization Act of 2017
The Senate voted 65 to 34 to extend FISA Section 702 authorities for six years on Thursday, one day before the temporary authorization was set to expire. The House passed the reauthorization measure on Jan. 11, and it will now head to President Donald Trump’s desk for his signature. Though the bill does not include some of the broader reforms included in earlier reauthorization proposals, it does involve “some significant changes to 702.” What follows is a section-by-section summary of its provisions. For further background on the reauthorization debate, see our resource page here and a review of last year’s coverage here.
Title I: Enhancements to Foreign Intelligence Collection and Safeguards, Accountability, and Oversight
Sec. 101. Querying Procedures Required
Under Section 101, the attorney general and the director of national intelligence (DNI) are required to adopt procedures “consistent with the requirements of the fourth amendment” for querying information collected pursuant to Section 702 authority. These procedures, which will govern searches designed to retrieve communications of or concerning U.S. persons, are subject to review by the Foreign Intelligence Surveillance Court (FISC). Though the specifics are for the most part left to be determined, the adopted procedures must include a record keeping of each “United States person query term” used.
In addition, the FBI must procure a court order to access the contents of communications responsive to U.S. person search terms in certain circumstances—namely, where the query “was not designed to find and extract foreign intelligence information” and instead is performed “in connection with a predicated criminal investigation” unrelated to national security. (A “predicated” investigation is one based on some existing evidence of unlawful conduct, as described in attorney general guidelines.) An order permitting access is issued when the bureau can demonstrate probable cause to believe the information will provide evidence of criminal activity. No order is required if the FBI determines that “there is a reasonable belief that such contents could assist in mitigating or eliminating a threat to life or serious body harm.”
Sec. 102. Use and Disclosure Provisions
Section 102(A) restricts the use of U.S. person information obtained under Section 702 as evidence in a criminal proceeding. Such information may only be used if (1) the FBI obtained a court order as described in Section 101; or (2) the criminal proceeding involves one of an enumerated list of conduct, including death, kidnapping, serious bodily injury, crimes against minors, incapacitation of critical infrastructure, cybersecurity, and transnational crime. In essence, this section codifies Justice Department guidelines concerning the use of collected information in criminal proceedings. A determination that the proceeding qualifies as related to or involving one of these categories of serious crimes is not judicially reviewable.
Section 102(B) amends the mandatory reporting requirements to require the release of information on the breakdown of U.S. and non-U.S. person targets of electronic surveillance. It also requires disclosure of “the number of instances in which the [FBI] opened ... an investigation of a United States person (who is not considered a threat to national security) based wholly or in part on an acquisition” of information under Section 702.
Sec. 103. Congressional Review and Oversight of Abouts Collection
This section concerns upstream “about” collection—information gathered from Internet communications infrastructure based on the mention of a certain selector, such as an email address, within the communication itself (as distinguished from communications collected because they are to or from a selector). This practice has been on hold since NSA announced in April 2017 that it would cease “about” collection and limit upstream collection to communications to or from a selector in order to address compliance issues involving prohibited searches of this information using U.S. person identifiers.
Under Section 103, should the attorney general and DNI decide to recommence “intentional acquisition of abouts communications,” they must inform Congress by written notice thirty days prior to restarting the program. The written notice must include a FISC decision, order, or opinion approving the program and “a summary of the protections in place to detect any material breach.” During the thirty-day period of congressional review, the NSA may not perform “about” collection unless the attorney general and DNI determine “that exigent circumstances exist” such that, in the absence of “about” collection, “intelligence important to the national security of the United States may be lost or not timely acquired.” The intelligence community must report material breaches—defined as ”significant noncompliance with applicable law or an order of the [FISC] concerning any acquisition of abouts communications”—to Congress. Finally, Section 103 provides that the FISC’s first review of a Section 702 certification authorizing “about” collection will presumptively present “a novel or significant interpretation of the law,” and therefore trigger the appointment of amici curiae under FISA Section 103(i)(2)(A).
Sec. 104. Publication of Minimization Procedures under Section 702
The DNI and the attorney general must publicly release on an annual basis a declassified version of the minimization procedures that apply to the handling of U.S. person information collected under Section 702.
Sec. 105. Section 705 Emergency Provision
This section applies to the targeting of known U.S. persons reasonably believed to be located outside the United States. If the attorney general has authorized “the emergency employment of electronic surveillance or a physical search pursuant to section 105 or 304” of such a person, this person may also be targeted during the same period for the purpose of gathering foreign intelligence without a separate FISC order. Sections 105 and 304 require an application to be submitted to a judge no later than seven days following an emergency authorization; if the application is ultimately denied, information collected under this section may not be used as evidence in a proceeding, and U.S. person information may not be used at all unless it indicates a threat of death or serious bodily harm.
Sec. 106. Compensation of Amici Curiae and Technical Experts
Section 106 authorizes the FISC to compensate individuals appointed as amici curiae.
Sec. 107. Additional Reporting Requirements
Under Section 107, in addition to reporting the total number of applications and orders for electronic surveillance, the attorney general must also report the total number of subjects targeted either under an order or pursuant to emergency authorization, and the number of those targeted who are U.S. persons. This report must be unclassified “to the extent consistent with national security” and made publicly available.
Sec. 108. Improvements to Privacy and Civil Liberties Oversight Board
Section 108 allows the Privacy and Civil Liberties Oversight Board (PCLOB) to exercise the authority of the chairman by unanimous vote when the position of chairman is vacant, as it has been since former chairman David Medine stepped down in 2016. It also excludes the PCLOB from the open meetings requirement of 5 U.S.C. 552(b).
Sec. 109. Privacy and Civil Liberties Officers
Section 109 explicitly adds the NSA and the FBI to the list of agencies required to appoint privacy and civil liberties officers under the Intelligence Reform and Terrorism Prevention Act of 2004.
Sec. 110. Whistleblower Protections for Contractors of the Intelligence Community
Section 110 extends whistleblower protections to contractor employees in the intelligence community and of the FBI. It prohibits contractors from taking or failing to take personnel actions “as a reprisal for a lawful disclosure of information” that the disclosing party reasonably believes is evidence of a violation of federal law or other misbehavior.
Sec. 111. Briefing on Notification Requirements
Section 111 requires the attorney general and DNI to brief Congress on the Justice Department’s interpretation of the statutory requirement that it notify the “aggrieved person” if it intends to use information “obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device” in a proceeding, with a particular focus on the phrase “obtained or derived from.”
Sec. 112. Inspector General Report on Queries Conducted by Federal Bureau of Investigation
Section 112 requires the Justice Department inspector general to prepare and submit a report to Congress on the querying procedures adopted as required by Section 101. This report must include assessments of the FBI’s treatment of individuals of unknown citizenship, its record-keeping practices, procedures to ensure compliance and compliance reviews, and impediments to accurate reporting of queries. The report “shall be submitted in unclassified form to the extent consistent with national security.”
Title II: Extension of Authorities, Increased Penalties, Reports, and Other Matters
Sec. 201. Reauthorization
Section 201 reauthorizes FISA Title VII, including Section 702, until Dec. 31, 2023.
Sec. 202. Increased Penalties for Unauthorized Removal and Retention of Classified Documents or Material
Section 202 increases the maximum sentence for unauthorized removal and retention of classified documents from one year to five years.
Sec. 203. Report on Challenges to the Effectiveness of Foreign Intelligence Surveillance
Section 203 requires the attorney general and DNI to submit a report to Congress within 270 days “on current and future challenges to the effectiveness of the foreign intelligence surveillance activities of the United States authorized under [FISA]” and recommended changes, particularly in light of technological developments.
Sec. 204. Comptroller General Study on the Classification System and Protection of Classified Information
Section 204 requires the comptroller general to conduct a study within 180 days on the U.S. classification system and protection of classified information. It must address whether sensitive information is properly classified, the effect of modern technology on the storage and protection of classified information, possible improvements to the classification system and to methods of authorized sharing of classified information, the value of polygraph tests, the uniformity of classification standards across the intelligence community, and the level of training provided by each element of the intelligence community.
Sec. 205. Technical Amendments and Amendments to Improve Procedures of the Foreign Intelligence Surveillance Court of Review
Section 205 contains several technical amendments and explicitly authorizes referral of the denial of certain applications to a court of review.
Sec. 206. Severability
Section 206 contains a standard severability provision.