ODNI Unseals 2020 FISC Decision Granting Government Surveillance Powers

Tia Sewell
Tuesday, April 27, 2021, 3:51 PM

Published by The Lawfare Institute
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On April 26, the Office of the Director of National Intelligence (ODNI) released a redacted Nov. 18, 2020 ruling issued by the Foreign Intelligence Surveillance Court (FISC). The decision, written by Judge James E. Boasberg, grants the U.S. government’s request for approval to continue collecting information on non-U.S. persons in order to acquire foreign intelligence information. Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the government must seek reauthorization of the certifications and procedures it uses to target foreign nationals to collect intelligence each year. The FISC reviews these requests annually to ensure that the U.S. government’s collection program is in compliance with FISA and the Constitution.

The decision notes that “[t]his Submission is largely a status-quo replacement of certifications and procedures approved by the Court in its Memorandum Opinion and Order dated December 6, 2019.” In the ruling, the FISC evaluated the targeting, minimization and querying procedures used by the government.

The FISC decision describes a number of “compliance incidents” that occurred at FBI field offices in 2019 and 2020 which the court states “suggest that the FBI’s failure to properly apply its querying standard when searching Section 702-acquired information was more pervasive than was previously believed.” The court asserts that it “continues to be concerned about FBI querying practices involving U.S.-person query terms,” including the FBI’s “use of queries that are designed to retrieve evidence of crime that is not foreign-intelligence information.” Nonetheless, citing the implementation of new system changes and training at the FBI following the violations, in addition to the government’s “severely limited” compliance monitoring capabilities during COVID-19, the court states that the improper queries “do not undermine its prior determination that, with implementation of the documentation requirement, the FBI’s querying and minimization procedures meet statutory and Fourth Amendment requirements.”

You can read the decision here or below:

Tia Sewell is a former associate editor of Lawfare. She studies international relations and economics at Stanford University.

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