Revelations From the Newly Declassified FISC Opinion on Section 702

Last week, the Office of the Director of National Intelligence (ODNI) declassified several Foreign Intelligence Surveillance Court (FISC) opinions from 2015. One opinion from November of last year by Judge Thomas Hogan, one of the first to incorporate a special advocate as required by the USA Freedom Act, offered significant insights, especially into the operation of Section 702’s minimization procedures.

While the general civil liberties concerns at issue regarding the minimization procedures — the backdoor search loophole and the use of information collected for foreign intelligence purposes in ordinary criminal cases — have been debated for years, the opinion provides a number of important new revelations. Elizabeth Goitein’s excellent post from last Thursday discusses one of them: the FBI’s problematic (re)definition of the term “query.” Four others bear mention:

1. The 2015 ODNI rules restricting evidentiary use of 702 data are not incorporated into the FBI minimization procedures:

In 2015, ODNI announced that the government would restrict use of Section 702 data as evidence in court proceedings to cases involving certain serious crimes and only then with the approval of the Attorney General. This was a welcome reform. One natural method of implementing it would have been to enshrine the use limits in the FBI’s minimization procedures, but the November 2015 FISC opinion reveals this has not occurred:

The FBI has adopted one policy change that is not reflected in its minimization procedures. The government has imposed additional limitations on the FBI’s use of Section 702-acquired information in connection with non-foreign intelligence criminal matters. These limitations … are reflected in the ODNI’s Signals Intelligence Reform 2015 Anniversary Report. (fn 28)

Omitting this requirement from the minimization procedures is significant because it makes the reform much easier to undo. If included in the minimization procedures, these use restrictions could only be removed with the approval of the Attorney General and the FISC, and FISC review could trigger public declassification per the USA Freedom Act’s requirement that opinions with significant interpretations of law be released. But in their current form, these important restrictions can be removed unilaterally by ODNI — without AG or FISC oversight — and in secret.

These use restrictions should be codified by Congress, but in the meantime there is no good reason to avoid and no obstacle to prevent their immediate formal inclusion in the minimization procedures. Such a measure would enhance oversight and accountability for reforms the Intelligence Community has promised.

2. The FBI can search for US persons in Section 702 databases to find criminal evidence:

The backdoor search loophole Elizabeth Goitein wrote about last week has long been a key civil liberties objection to Section 702. During its 2015 announcement of the new use restrictions, ODNI also tried to alleviate concerns by imposing a limit on backdoor searches for US persons: The NSA and CIA would be permitted to query US persons only if the search was “reasonably likely to return foreign intelligence information.” This is a sensible reform: The purpose of Section 702 is gathering foreign intelligence; use of this powerful surveillance tool should be consistent with that purpose. But, at the time I questioned whether this restriction would apply to the FBI as well. We now know that it does not.

According to the November 2015 FISC opinion, FBI backdoor searches can be conducted to seek out evidence of any domestic crime:

Queries by FBI personnel of Section 702-acquired data may be reasonably designed to “find and extract” either “foreign intelligence information” or “evidence of a crime.” (pp. 27–28, emphasis mine)

This permits Section 702 data to be used proactively for domestic law enforcement investigations into US persons, a purpose far beyond the foreign intelligence and counterterrorism goals for which Section 702 was authorized. Later in his opinion, Judge Hogan claims that this “does not convert Section 702 acquisitions into ‘a device to investigate wholly unrelated ordinary crimes,’” but it is hard to square his optimism with the FBI’s capabilities. Absent the querying restrictions that apply to NSA and CIA, FBI personnel can search for US person communications to augment investigations of, for example, nonviolent offenses unconnected to national security, such as tax evasion or low-level drug sales. That is converting a foreign intelligence database into a means to investigate wholly unrelated ordinary crimes, plain and simple.

3. The FBI can use Section 702 data to initiate investigations:

Since the 2013 Snowden disclosures, we’ve known that Section 702 data could be used for domestic criminal investigations; the (now dated) minimization procedures and each of their more recent iterations have included a sweeping exemption to retain, share, and use US person communications that may contain any evidence of any crime. But we lacked clarity as to whether the FBI had to request potential evidence regarding an open investigation, or could sift through Section 702 data to initiate an entirely new investigation. The November 2015 FISC opinion revealed it’s the latter:

The [FBI minimization procedures] state: It is a routine and encouraged practice for the FBI to query databases containing lawfully acquired information, including FISA-acquired information, in furtherance of the FBI’s authorized intelligence and law enforcement activities, such as assessments …. [This includes] reasonably designed queries conducted by FBI personnel in making an initial decision to open an assessment concerning a threat to the national security, the prevention or protection against a Federal crime, or the collection of foreign intelligence. (fn 27, emphasis mine)

This bolsters the notion that Section 702 can be used proactively for domestic law enforcement. Such use is not limited to situations in which an analyst stumbles upon evidence for an investigation, or even situations where Section 702 data is searched to aid an investigation that is well under way — the FBI can actively seek out information on US persons to begin a criminal investigation for any federal offense, so long as that offense has some future nexus. In fact, the minimization procedures encourage them to do so.

4. FBI personnel without specialized training can view and use Section 702 data:

For the last two years it has appeared that only FBI personnel with specialized training could view and use Section 702 data. In a 2014 letter to Sen. Ron Wyden on backdoor searches, the ODNI stated:

Only FBI personnel trained in the Section 702 minimization procedures are able to view any Section 702 collection that is responsive to any query.

This claim appears to conflict with new information from the November 2015 FISC opinion, which states:

FBI personnel who have not been trained for and granted access to FISA-acquired information are not allowed to view the query results unless the information has first been determined by an appropriately cleared personnel to meet one of those standards [i.e., reasonably appears to be foreign intelligence information, necessary to understand foreign intelligence information, or evidence of a crime.] (p. 35)

This is a pretty significant “unless,” one that did not appear in the public letter two years ago. Giving personnel without specialized training access to Section 702 data raises concerns about the strength and scope of minimization rules, and compliance with them. In the opinion, Judge Hogan states “the FBI Minimization Procedures impose substantial restrictions on the use and dissemination of information derived from queries.” But if these restrictions only apply to the initial assessment that information reasonably appears to be evidence of any crime, are they really “substantial”? If the minimization procedures apply beyond the initial assessment, how can we expect untrained personnel — who have been given access to Section 702 data believed to be criminal evidence — to follow them?

Furthermore, there is an exception to the rule that only trained personnel can initially view Section 702. According to the November 2015 opinion:

In “very rare” circumstances, FBI personnel who are not trained for and do not have access to Section 702-acquired information may view the results of a query solely to aid in the determination of whether the information constitutes foreign intelligence information or evidence of a crime. (fn 31)

This insight into who can access 702 data and with what (if any) training raises questions, both in terms of the effectiveness of oversight measures and consistency with ODNI’s previous statement on the issue.

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The November 2015 opinion provides some helpful insight into how Section 702 is being used, and the nature, scope, and efficacy of safeguards against misuse. But it’s long past time the government released the current FBI minimization procedures themselves. Especially as we head into a debate over the law’s potential reauthorization, clarity about how Section 702 is used is at a premium. 

About the Author(s)

Jake Laperruque

Senior Counsel at Project on Government Oversight. Follow him on Twitter (@jakelaperruque). All views expressed in this piece are his own and do not represent those of his employer.