DECLASSIFIED by DNI Haines on 16 July 2023

FISA Section 702 Memorandum Opinion and Order

Authorized fo~l~&l,lic Relepse by ODNIUnited States ForeignIntelligence Surveillance Court

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APR t 1 2023

UNITED STATESMaura Peterson Clerk of Court

FOREIGN INTELLIGENCE SURVEILLANCE COURT'WASHINGTON, D.C.

UNDER SEAL)
IN RE DN I/AG 702(h) CERTIFICATION 2023 -A ))AND ITS PREDECESSOR CERTIFICATIONS. )Docket No. 702(j)-23-01 andpredecessor dockets)
IN RE DNI/AG 702(h) CERTIFICATION 2023-B ))AND ITS PREDECESSOR CERTIFICATIONS. )Docket No. 7020)-23-02 andpredecessor dockets)
IN RE DNVAG 702(h) CERTIFICATION 2023-C ))AND ITS PREDECESSOR CERTIFICATIONS. )Docket No. 702(j)-23-03 andpredecessor dockets

MEMORANDUM OPINION AND ORDER
Now before the Foreign Intelligence Surveillance Court (FISC) are the " Government's Ex
Parte Submission of Reauthorization Certifications and Related Procedures, Ex Parte Submissionof Amended Certifications, and Request for an Order Approving Such Certifications andAmended Certifications," filed on March 13, 2023 ("March 13, 2023 Submission"), which is
subject to review under Section 702(j) of the Foreign Intelligence Surveillance Act (FISA) as
amended. (Section 702 of FISA is codified at 50 U.S.C. § 188la.) The government's request for
approval of the amended certifications and related procedures is granted for the reasons statedherein, subject to certain reporting and other requirements set out at the end of this Opinion.
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After summarizing the pertinent procedural history in Part I, the Court finds in Part II thatthe certifications before it contain the elements required by Section 702(h). Part III examines thetargeting procedures. In Part IV, the Court reviews the minimization and querying procedures,with particular attention to revisions to procedures for the National Security Agency (NSA) that
relate to the definition of "query" and to vetting non-U.S. persons seeking to enter the UnitedStates or receive a benefit under U.S. immigration law. Certain implementation issues relating tothose revisions are also discussed in Part IV. The Court concludes that the targeting,minimization, and querying procedures, as written, meet statutory requirements.
In Part V, the Court finds those procedures, as written, to be consistent with Fourth
Amendment requirements. In Part VI, the Court assesses how the NSA, Federal Bureau of
Investigation (FBI), Central Intelligence Agency (CIA), and National Counterterrorism Center(NCTC) are likely to implement their respective procedures in view of instances of noncompliance and other information reported. Particular attention is paid to FBI querying practices,which have been of substantial concern in prior reviews under Section 702(j). 1 The Court findsthat the agencies' likely implementation of their procedures is consistent with applicablestatutory and Fourth Amendment requirements. Finally, the Court summarizes its disposition
and imposes certain reporting and other requirements in Part VII.

1

See Docket Nos. 702(j)-21-01, et al., Mem. Op. and Order at 23-34, 47-49 (Apr. 21,2022) ("April 21, 2022 Opinion"); Docket Nos. 702(j)-18-0l, et al., Mem. Op. and Order at 6872, 75-83 (Oct. 18, 2018) ("October 18, 2018 Opinion"), affd in part, In re DNJIAG 702(h)Certifications, 94 l F.3d 547 (FISCR 2019) (per curiam).
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I.

THE SUBMISSIONS AND PROCEDURAL HISTORYA.

The 2023 Certifications

The March 13, 2023 Submission included three certifications executed by the Attorney
General (AG) and the Director of National Intelligence (DNI) pursuant to Section 702(h):DNI/AG 702(h) Certification 2023-A ("Certification 2023-A"); DNI/ AG 702(h) Certification
2023-B ("Certification 2023-B"); and DNI/AG 702(h) Certification 2023-C ("Certification 2023C"). The following documents accompanied each of those certifications (which are collectively
referred to as "the 2023 Certifications"):(1) Supporting affidavits of the Director of the NSA, the Director of the FBI, the Directorof the CIA, and the Director of the NCTC;(2) Two sets of targeting procedures, which govern NSA and the FBI, respectively. The
targeting procedures for NSA appear as Exhibit A to each certification and those for the
FBI appear as Exhibit C. The targeting procedures for each certification are identical;(3) Four sets of minimization procedures, which govern NSA, the FBI, the CIA, andNCTC, respectively. The minimization procedures for NSA appear as Exhibit B to eachcertification, those for the FBI appear as Exhibit D, thqse for the CIA appear as Exhibit E,
and those for NCTC appear as Exhibit G. (Exhibit F to Certification 2023-A andCertification 2023-B identifies the individuals or entities targeted under thosecertifications. Certification 2023 -C does not have an Exhibit F.) The minimization
procedures for each certification are identical; and(4) Four sets of querying procedures, which govern NSA, the FBI, the CIA, and NCTC,
respectively. The querying procedures for NSA appear as Exhibit H to each certifi cation,
those for the FBI appear as Exhibit I, those for the CIA appear as Exhibit J, and those for
NCTC appear as Exhibit K. The querying procedures for each certification are identical.
The March 13, 2023 Submission also included a memorandum prepared by the National Security
Division (NSD), U.S . Department of Justice ("March 13, 2023 Memorandum") and a Classified

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NSA, Regarding the NSA' s Support to Vetting Activities

Declaration of("NSA Deel. Mar. 13, 2023").

Each of the 2023 Certifications authorizes "the targeting of non-United States persons
reasonably believed to be located outside the United States to acquire foreign intelligenceinfonnation." Certification 2023-A at 4; Certification 2023 -B at 3; Certification 2023-C at 3.
Certification 2023-A involves

ee Certifi cation 2023-A at 3. Certification 2023 -B involves theCertification 2023-B at 3. Finally, Certification 2023-C involves

See Certification 2023-C at 1, 3.
The 2023 Certifications generally extend authorizations to acquire foreign intelligenceinfonnation under certifications approved by the Court in the April 21, 2022 Opinion ("the 2021
Certifications"). 2 Those certifications - also denominated "A," "B," and "C" and covering the2

2, the Court approved acquisitions by means ofursuant to Certification 202 1-A(continued ...)

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same subjects as the 2023 Certifications - generally renewed authorizations to acquire foreign
intelligence information under a series of certifications dating back to 2008. 3
Each 2023 Certification also amends the certifications in the Prior 702 Dockets toauthorize NSA to apply to information obtained under prior certifications the same minimizationand querying procedures that are to be applied to information obtained under the 2023
Certifications. See March 13, 2023 Memorandum at 2-3; Certification 2023-A at 4-5;
Certification 2023-B at 4-5; Certification 2023-C at 4. As submitted on March 13, 2023,
however, Certification 2023-B did not amend Certification 202 1-B to authorize use of the revised
NSA minimization procedures, even though it amended Certification 2021-B to authorize use of
the revised NSA querying procedures. See Certification 2023-B at 4-5. Otherwise, the 2023
Certifications, as submitted on that date, amended all prior certifications to authorize NSA to use

See April 21, 2022 Opinion at 81-120. The Court also establishedreporting and implementation requirements regarding such acquisitions. See id. at 126-27. The
government has not submitted any reports of changed circumstances and proposes to continue
such acquisitions on the same terms. See Affidavit of the Director ofNSA in Support ofCertification 2023-A at 2-3; NSA Targeting Procedures § VI at 11-1 2; NSA Minimization
1. The Court makes the findings necessary to approve continuation of
for the reasons stated in the April 21, 2022 Opinion.

3

See Docket Nos. 702(i)-08-0 1, 702(i)-08-02, 702(i)-09-01, 702(i)-09-02, 702(i)-09-03,
702(i)-10-01, 702(i)-10-02, 702(i)-10-03, 702(i)-1 1-0l, 702(i)-l 1-02, 702(i)-1 l-03, 702(i)-12-0l,
702(i)-12-02, 702(i)-12-03, 702(i)-13-01, 702(i)-13-02, 702(i)-13-03, 702(i)- 14-0 l , 702(i)-14-02,702(i)-1 4-03 , 702(i)-15-01, 702(i)-15-02, 702(i)-15-03, 702(i)-16-0l , 702(i)-16-02, 702(i)-16-03,
702(j)-18-0 l , 702(j)-18-02, 702(j)-18-03, 702(j)-19-0l, 702(j)-19-02, 702(j)-19-03, 702(j)-20-0l,
702(j)-20-02, and 702(j)-20-03. Those dockets, together with Docket Numbers 702(j)-21-0l ,702(j)-21-02, and 7020)-210-03, are collectively referred to as "the Prior 702 Dockets."
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both sets of revised procedures. See id.; Certification 2023-A at 4-5; Certification 2023-C at 4. 4
After the Court, through its staff, inquired about this apparent omission, the government
submitted an amendment to Certification 2021-B that duly authorizes NSA to apply the revised
minimization procedures to infonnation acquired pursuant to that certification. See Amendment
to DNI/AG 702(h) Certification 2021 -B at 4-5 (Mar. 29, 2023) ("Second Amendment toCertification 2021-B").

B.

Briefine and Consideration of Issues Presented by NSA Minimization andQuerying Procedures

As noted above, the NSA Querying Procedures and Minimization Procedures include
new provisions respecting vetting of non-U.S. persons seeking to enter the United States or
receive a benefit under U.S. immigration law ("travel vetting"). Those provisions permit NSA to
search and review Section 702-acquired data for information relating to such non-U.S. persons,regardless of whether foreign intelligence information is reasonably likely to be retrieved. See
NSA Querying Procedures§ IV.A, D. The government included a similar, but more far-reaching
proposal in the procedures that accompanied the 2021 Certifications as initially submitted to the
FISC on October 18, 202 1. See Government's Ex Parte Submission of Reauthorization
Certifications and Related Procedures, Ex Parte Submission of Amended Certifications, andRequest for an Order Approving Such Certifications and Amended Certifications" (Oct. 18,

4Because the government has not revised the minimization and querying procedures for
the FBI, CIA, and NCTC, the 2023 Certifications do not amend the prior certifications regarding
those procedures.

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202 1) ("October I 8, 2021 Submission"). 5 Among other differences, the travel-vetting provisions
in this submission applied to non-U.S. persons who had
as well as any other category of non-U.S . persons in the United States,
if deemed necessary by NSA and authorized by the DNI (or Principal Deputy) and the AG, with
notification to the FISC. See NSA Querying Procedures § IV.D (included in the October 18,
2021 Submission). In contrast, the provision now before the Court does not apply to "travel orimmigration applicants that NSA knows, or reasonably should know, are located or reside inside
the United States." NSA Querying Procedures § IV.D. The Court questioned whether those
provisions in the October 18, 2021 Submission comported with the Fourth Amendment andstatutory minimization requirements. See April 2 1, 2022 Opinion at 7-8. In particular, "(t]heCourt, through its staff, expressed concern" that the described vetting process "might involve a'query' of raw Section 702 information, as defined at Section III.A of the NSA Querying
Procedures, that is not reasonably likely to retrieve foreign intelligence information." See id at
79-80.
The government ultimately decided not to seek approval of the travel-vetting provisions
as part of the Court's initial review of the 2021 Certifications. On March 18, 2022, it submitted
in final form amendments to the 2021 Certifications, which, among other things, rescinded thetravel-vetting changes to NSA's procedures ("March 18, 2022 Submission").6 An accompanying

5

The October I 8, 2021 Submission included a memorandum by NSD ("October 18, 202 1
Memorandum").
6

See Amendment to DNI/ AG 702(h) Certification 2021-A ("Amendment to Certification(continued ...)I Of SECKEtnstm ◄ OFORl ◄ JFISA

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memorandum prepared by NSD ("March 18, 2022 Memorandum") stated that the government
intended to include provisions related to travel vetting in "a separate, later amendment to the2021 Certifications." March 18, 2022 Memorandum at 3. Indeed, to that end it had alreadysubmitted amended certifications and revised NSA querying and minimization procedures indraft (or "read copy") form. See Government's Ex Parte Submission of Amendments to DNI/AG
702(h) Certifications and Related Procedures, Ex Parte Submission of Amendments to DNI/AG
702(h) and DNI/AG 702(g) Certifications, and Request for an Order Approving such Amended
Certifications (Mar. 1, 2022) ("March 1, 2022 Submission"). That submission included, also indraft form, a NSD memorandum ("March 1, 2022 Memorandum") and a Classified Declaration
SA, Regarding the NSA 's Support to Vetting Activities.
On March 24, 2022, the Court appointed Amy Jeffress, Esq., and Amanda Claire Hoover,Esq., as amici curiae to address the fo llowing issues presented by the March 1, 2022 Submission:(1) whether certain processes described in Section IV .D of the proposed querying procedures for
NSA involve a "query" as defined at Section 702(f); and (2) whether those processes, regardlessof whether they are reasonably likely to retrieve or identify foreign intelligence information,
comport with the definition of"minimization procedures" at 50 U.S.C. §§ l 80l(h) and 1821(4)and the requirements of the Fourth Amendment. Order Appointing Amicus Curiae at 3-4 (Mar.
24, 2022). Those issues were briefed as follows: Brief of Amici Curiae, filed May 9, 2022

6( ... continued)
2021-A"); Amendment to DNI/AG 702(h) Certification 2021-B ("Amendment to Certification
2021 -B"); and Amendment to DN I/AG 702(h) Certification 2021 -C ("Amendment toCertification 2021-C").
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Curiae, filed May 26, 2022 ("Gov't Resp. May 26, 2022"); and Reply Brief of Amici Curiae,
filed June 6, 2022 ("Amici Reply Jun. 6, 2022").7

In addition, discussion of the issues identified in the travel-vetting context led torecognition that other automated NSA processes may present similar issues. The government
proposed by July 21, 2022, to submit "a factual description of the various categories ofprocessing activities that interact with raw Section 702 information, including examples toillustrate the scope of each category, and to describe the parameters of such processing and thecontrols in place to ensure compliance with NSA's minimization and querying procedures," andto submit "a legal analysis of such processing activities" by August 19, 2022. April 2 I, 2022
Opinion at 80. The Court accepted that proposal. Id. Although the government took somewhat
more time than initially anticipated, it submitted its factual assessment on August 23 , 2022, seeClassified Declaration of Natalie N. Laing, NSA, Regarding the NSA 's Processing of Section
702-Acquired Information (Aug. 23, 2022) ("NSA Deel. Aug. 23, 2022"), and its legal
assessment on October 28, 2022, see Government's Legal Assessment Regarding NSA's Reporton Automated Processing Activities that Use Unminimized Section 702-Acquired Data (Oct. 28,2022) ("Gov' t Legal Assessment Oct. 28, 2022"). 8

7

After this briefing, Ms. Hoover withdrew her appearance as an amicus. See Order at 2n. l (Dec. 14, 2022) ("Dec. 14, 2022 Order"). The able assistance of Ms. Jeffress and Ms.
Hoover is greatly appreciated. For ease ofreference, the following discussion attributes
arguments simply to "the Amicus."
8 The legal assessment was accompanied by a second declaration by Ms. Laing. See(continued ...)
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After considering these submissions, the Court, through its staff, "informed thegovernment and the Amicus that it [was] prepared to find that the proposed procedures, withm inor modification, are consistent with applicable statutory and Fourth Amendment
requirements ... as limited to the travel-vetting context." Dec. 14, 2022 Order at 3. But section

ay be accessed by NSA analysts for unspecified

government had advised that

purposes, by queries that are reasonably likely to retrieve foreign intelligence
information. Id. at 4; NSA Querying Procedures§ IV.D. "Without further information, the Court[was] unable to find that these other uses ofomport with applicable statutory

and Fourth Amendment requirements." Dec. 14, 2022 Order at 4. Specifically, the Court noted
the possibility that an automated process that does not involve human review - and that the
government therefore m ight not consider to be a query - could still present statutory
minimization or Fourth Amendment issues, e.g., by flagging "particular individuals for closer
scrutiny or adverse action" outside the travel-vetting context. Id. And when information on theouJd be accessed through means acknowledged to be queries, the Court
expressed "concern that the standard of 'reasonably likely to retrieve foreign intelligence
information' may be applied with undue lenity." Id. at 5.

8( ... continued)

Supplemental Classified Declaration of Natalie N. Laing, NSA, Regarding the NSA's Processingof Section 702-Acquired Information (Oct. 28, 2022) ("NSA Deel. Oct. 28, 2022").

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Accordingly, the Court directed the government to provide "a factual description" of"current or anticipated uses ooutside of the travel-vetting context and "ananalysis of whether each such use complies with applicable statutory requirements and provisionsof the minimization and querying procedures." Id. at 6. The Court specifically directed thegovernment to state whether such analyses involved a conclusion thatsnot a ' query' as defined in the NSA Querying
Procedures or in Section 702(f)(3)(B)" or that "a query term could be regarded as reasonably
likely to retrieve foreign intelligence information," either because of how

government's view would not constitute a 'query,' tha.. contains responsive

information." Id at 6-7. Finally, the Court provided for the Amicus to respond to thegovernment's submission and for the government to reply. Id. at 7. Under that Order, the Court
received the following: Government's Verified Written Submission Regarding NSA's Use ofJan. 10, 2023) ("Gov't Submission Jan. 10, 2023"); Amicus
Res onse to Government's Verifi ed Written Submission Regarding NSA's Use of(Jan. 24, 2023) (''Amicus Resp. Jan. 24, 2023"); and Government's
Reply to the Response Brief of Amicus Curiae (Feb. 7, 2023) ("Gov't Reply Feb. 7, 2023").

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REVIEW OF THE 2023 CERTIFICATIONS AND THE PRIORCERTIFICATIONS, AS AMENDED
The Court reviews a Section 702 certification "to determine whether [it] contains all therequired elements." Section 702U)(2)(A). Having examined the 2023 Certifications, the Court
finds that:(l) they have been made under oath by the AG and the DNI, as required by
Section 702(h)(l )(A), see Certification 2023-A at 6-7; Certification 2023-B at 67; Certification 2023-C at 5-6;9(2) they include the attestations required by Section 702(h)(2)(A), see
Certification 2023 -A at 1-3; Certification 2023-B at 1-3; Certification 2023-C at
1-3;(3) as required by Section 702(h)(2)(B), they are accompanied by targeting
procedures and minimization procedures adopted in accordance with
Section 702(d) and (e), respectively;(4) they are supported by affidavits of appropriate national-security officials, as
described in Section 702(h)(2)(C); and(5) in accordance with Section 702(h)(2)(D), each certification includes aneffective date: April 12, 2023, or the date upon which the Court issues an orderconcerning the certification under Section 702G)(3), whichever is later. See
Certification 2023 -A at 4; Certification 2023-B at 3-5; Certification 2023-C at 3.
(The statement described in Section 702(h)(2)(E) is not required because there
was no "exigent circumstances" determination under Section 702(c)(2).)
The Court therefore finds that the 2023 Certifications contain all the required statutory
elements. Similarly, it has reviewed the certifications in the Prior 702 Dockets, as amended by

9

FISA defines "Attorney General" to include "the Attorney General of the United States(or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the
Attorney General, . .. the Assistant Attorney General for National Security." 50 U.S.C.
§ 1801 (g). Acting on such designation, the Assistant Attorney General for National Security
executed the 2023 Certifications and the Second Amendment to Certification 2021-B.

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the 2023 Certifications and the Second Amendment to Certification 2021-B, and finds that theyalso contain all the elements required by the statute. Those amendments have the same effective
dates as the 2023 Certifications. See Certification 2023-A at 5; Certification 2023-B at 5;
Certification 2023-C at 4; Second Amendment to Certification 2021-B at 5. JO
The Court now turns to the targeting, querying, and minimization procedures that
accompany the 2023 Certifications. These procedures, taken as a whole, must be consistent withstatutory and Fourth Amendment requirements; however, because the Court has previously
approved versions of each set of procedures, the analysis largely focuses on changes to what waspreviously approved. Some minor revisions are not material to the Court's review and therefore
are not specifically discussed.

III.

THE TARGETING PROCEDURES
Targeting procedures must be "reasonably designed" to "ensure that any acquisition

authorized under [Section 702(a)] is limited to targeting persons reasonably believed to belocated outside the United States" and to "prevent the intentional acquisition of any
communication as to which the sender and all intended recipients are known at the time of theacquisition to be located in the United States." § 702(d)( l ); see also§ 702(b)(l) (acquisitions"may not intentionally target any person known at the time of acquisition to be located in the
United States"); § 702(b)(4) (acquisitions "may not intentionally acquire any communication as

10This effective date for the Second Amendment to Certification 2021 -B is in accordancewith Section 702(h)(l )(C), under which the AG and the DNI "may authorize the use of anamended certification or amended procedures pending the Court's review of such amended
certification or amended procedures."
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to which the sender and all intended recipients are known at the time of acquisition to be locatedin the United States"). The targeting procedures are also used to ensure that acquisitions do "notintentionally target a United States person reasonably believed to be located outside the UnitedStates." § 702(b)(3). Pursuant to Section 702G)(2)(B), the Court assesses whether the targeting
procedures satisfy those criteria. The Court must also determine whether such procedures, alongwith the querying and minimization procedures, are consistent with the requirements of the
Fourth Amendment. See § 702G)(2)(A)-(B).

A.

Bac~round on Acquisition and Targeting Under Section 702

The government targets a person under Section 702 by tasking for acquisition one
or more selectors (e.g., identifiers for email or other electronic-communicationaccounts) associated with that person. Section 702 encompasses different formsof acquisition. The government may acquire information "upstream," as it transits
the faci lities of an Internet backbone carrier as well as "downstream " fromraditional
systems operated by providers of services
telephone communications may also be acqmre
October 18, 2018 Opinion at 11 (citation omitted).
NSA is the lead agency for Section 702 targeting decisions. Before tasking a selector, it
must detennine that the target is reasonably believed to be a non-U.S. person outside the UnitedStates (a "foreignness determination"). In making such determinations, NSA reviews certain
categories of information about the proposed target and evaluates "the totality of thecircumstances based on the information available with respect to that perso

Targeting Procedures § I, at I. An NSA targeting decision must also be supported by a"particularized and fact-based" assessment that "t he target is expected to possess, receive, and/or

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is likely to communicate foreign intelligence information" relevant to the subject matter of a
Section 702 certification . Id. at 4.
NSA is also required to conduct post-targeting analysis "to detect those occasions when aperson who when targeted was reasonably believed to be located outside the United States islocated in the United States." Id. § II, at 6-7. This analysis involves routinely comparing eachtasked selector against independently-acquired information for indications that it may be used in
the United States, and examination of the content of communications obtained throughsurveillance of a tasked selector for indications that the target is now in, or may enter, the UnitedStates. Id. at 7-8. If NSA concludes that a target is in the United States or is a U.S. persont must terminate the acquisition without
delay. Id. § II, at 8, § IV, at 10.

targeting procedures, under which the FBI may

for selectors that NSA

has already approved for tasking under its targeting procedures. See FBI Targeting Procedures§ I.l. "Thus, the FBI Targeting Procedures apply in addition to the NSA Targeting Procedures,"See Docket No.

em. Op. at 20 (Sept. 4,2008) (emphasis in original) ("September 4, 2008 Opinion").
NSA provides to the FBI an explanation of its foreignness determination for each selector

See FBI Targeting(or "Designated Account") for which NSA'f6f 9ECM'fh'Ofh'l't6F8M411fi!IOA

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Procedures§ I.1-2. The FBI, "in consultation with NSA, will review and evaluate the sufficiency

of' that determination. Id. § I.3. The FBI also runs certain checks of information in its
possession in the course of that review and evaluation. "Unless the FBI locates information
indicating that the user of the Designated Account is a United States person or is located insideof the United States, the FBI willor that account unless and until it "determines that the Designated Account is in fact
appropriate for tasking." Id. § 1.8.

B.

NSA Targeting Procedures

The NSA targeting procedures that accompany the 2023 Certifications are identical tothose approved in the April 21, 2022 Opinion. The Court finds that these procedures, as written,
satisfy applicable statutory requirements.
C.

FBI Targeting Procedures

As discussed below, the FBI targeting procedures that accompany the 2023 Certifications
include relatively minor revisions to the procedures approved in the April 21, 2022 Opinion. The
Court finds that these procedures also satisfy applicable statutory requirements.
The most significant revisions concern how the FBI
nder section I.4 of the FBI's targeting procedures. 11 The FBI is(continued...)'f18P tJ6ellf5'f;':1tJl:':"1i8F8iR-Pi,'f31tJA

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Authorized for Public Release by ODNII 01 SELKE I h Slhi ◄ Ofl OllhJII ISAFBI Targeting Procedures § I.4, at 3 n.4.
Based on FBI's experience since 2019, the government believes that

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if18P 81JCftE•IW810N8f181tNilf31SA
he Court is persuaded that reasonably designed targeting procedures need not rigidly

see also Update Regarding
Implementation of the FBI's Section 702 Targeting Procedures at 8 (Apr. 18, 2019)

FBI Targeting Procedures§ 1.4.e; March 13, 2023
Memorandum at 24-25.
The revisions to this provision make two substantive changes. First, it is now specified

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revision helpful because it clarifies the scope of section 1.4.e in relation to section I.4.h,March 13, 2023 Memorandum at 27. In more likely scenarios, in whic
the FBI would be required to comply with the requirements of section I.4 to theextent possible. The Court understands that result to be the fair import of section 1 4.e, which
requiresto be "otherwise in accordance with these procedures."And, as noted above

are only made for accounts for which NSA already has

made a foreignness determination under its own procedures. All things considered, thepossibility that an approval under section I.4.e would result in targeting a U.S . person or a person
located in the United States seems remote.

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T8f 8f!IORllll:l;lfH:1;,mP8Rf tflilOa

The other revisions to the FBI' s targeting procedures are of less moment. One is a
NSA may still provide

clarification to section I.2 that, after making aidentifying information to the FBI, until the FBI decides whether to approve the request. See
March 13, 2023 Memorandum at 14-15. It makes sense that post-request discussion between theagencies will sometimes result in NSA providing additional information. Nevertheless, when in
doubt about whether particular information would be useful to the FBI's evaluation of a request,
NSA should err on the side of providin g it promptly.
Another revision removes a reference in section I.4.b.ii t

Finally, section III.l 3 is revised to refer to the FBl's Office oflntemal
Auditing (OJA) rather than its Inspection Division because OIA is taking responsibility for
conducting periodic reviews of the FBI' s implementation of its targeting procedures.

D.

Conclusion

The FISC has previously found the current versions of the FBI and NSA's targeting
procedures to comply with statutory requirements. April 21, 2022 Opinion at 16. For thereasons stated above and in the Court's opinions in the Prior 702 Dockets, the Court concludes
that the NSA Targeting Procedures and the FBI Targeting Procedures, as written, are reasonably

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designed to: ( 1) ensure that any acquisition authorized under the 2023 Certifications is limited totargeting persons reasonably believed to be located outside the United States, (2) prevent theintentional acquisition of any communication as to which the sender and all intended recipientsare known at the time of acquisition to be located in the United States, and (3) prevent targeting
U.S. persons for acquisition. The first two of these findings are required by Section 702(d)(l).
The third is relevant to the Court' s analysis of whether these procedures are consistent with therequirements of the Fourth Amendment. See infra p. 69.
IV.

THE MINIMIZATION PROCEDURES AND QUERYING PROCEDURES

Pursuant to Section 702(j)(2)(C), the Court must also assess whether the minimization
procedures "meet the definition of minimization procedures under [50 U.S.C. § 180l(h) or
1821(4)), as appropriate." That definition requires( l) specific procedures . .. that are reasonably designed in light of the purpose andtechnique of the particular surveillance [or physical search], to minimize theacquisition and retention, and prohibit the dissemination, of nonpublicly available
information concerning unconsenting United States persons consistent with theneed of the United States to obtain, produce, and disseminate foreign intelligence
information;[ 13]13

FISA defines "foreign intelligence information" as:(1) information that relates to, and if concerning a United States person isnecessary to, the ability of the United States to protect against (A) actual or potential attack or other grave hostile acts of a foreign poweror an agent of a foreign power;(B) sabotage, international terrorism, or the international proliferation of
weapons of mass destruction by a foreign power or an agent of a foreign
power; or(C) clandestine intelligence activities by an intelligence service or networkof a foreign power or by an agent of a foreign power; or(continued ... )118P OE ONJIJi/i'Ql/;lf f8li81UUlilQtlt

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Authorized for Public Release by ODNI(2) procedures that require that nonpublicly available infonnation, which is notforeign intelligence infonnation, as defined in [50 U.S.C. § 180l(e)(l)], shall not
be disseminated in a manner that identifies any United States person, without such
person's consent, unless such person's identity is necessary to understand foreign
intelligence information or assess its importance; [and](3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention
and dissemination of infonnation that is evidence of a crime which has been, isbeing, or is about to be committed and that is to be retained or disseminated forlaw enforcement purposes[ .... ]50 U.S.C. § 180l(h). 14
Because this definition focuses on protecting U.S.-person infonnation and identities, it issignificant that Section 702 acquisitions target persons reasonably believed to be non-U.S.
persons outside the United States. Although such targets may communicate with or about U.S.
persons, Section 702 acquisitions, as a general matter, are less likely to acquire infonnation about
U.S. persons that is unrelated to the foreign intelligence purpose of the acquisition than, forexample, electronic surveillance or physical search of a home or workplace within the UnitedStates that a target shares with U.S. persons.

13( ... continued)(2) information with respect to a foreign power or foreign territory that relates to,and if concerning a United States person is necessary to (A) the national defense or the security of the United States; or(B) the conduct of the foreign affairs of the United States.

50 U.S.C. § 1801(e).
14The definition of"minimization procedures" at§ 1821(4) is substantively identical tothe one at§ 1801(h) (although§ 1821(4)(A) refers to "the purposes . .. of the particular physicalsearch"). For simplicity, subsequent citations refer only to § 180 l (h).
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Authorized for Public Release by ODNIThe AG, in consultation with the DN I, also must "adopt querying procedures consistent
with the requirements of the fourth amendment ... for information collected" pursuant to a
Section 702 authorization, § 702(f)(l )(A), and must "ensure" that those procedures "include atechnical procedure whereby a record is kept of each United States person query term used for aquery." § 702(f)(l)(B). The FISC must determine whether querying procedures satisfy thoserequirements. See § 702G)(3)(A)-(B).
Each agency's procedures specify that the querying and minimization procedures are to
be read and applied together. 15 The Court therefore will assess whether each agency's
minimization procedures, in conjunction with its querying procedures, satisfy § 180 I (h).

A.

Background on Section 702 Minimization and Oueryine

Each agency with access to "raw," or unminimized, information obtained under Section
702 (NSA, FBI, CIA, and NCTC) is governed by its own set of minimization procedures for suchinformation. 16 There are significant differences among the agencies' minimization procedures

15

See, e.g., N SA Querying Procedures§ I ("These querying procedures should be readand applied in conjunction with [the separate] minimization procedures, and nothing in theseprocedures permits any actions that would otherwise be prohibited by those minimization
procedures."); FBI Querying Procedures§ I (same); NSA Minimization Procedures§ I ("These
minimization procedures apply in addition to separate querying procedures .... [They] should beread and applied in conjunction with those querying procedures, and nothing in these procedures
permits any actions that would otherwise be prohibited by those querying procedures."); FBI
Minimization Procedures § I.A (same).
16

This opinion uses the terms " raw" and "unminimized" interchangeably. The NCTC
Minimization Procedures define "raw" information as:
section 702-acquired information that (i) is in the same or substantially the sameformat as when NSA or FBI acquired it, or (ii) has been processed only as(continued...)Page 23

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based on such factors as their differing missions, legal and policy constraints, and technicalinfrastructure. They nonetheless share several important features.
Regarding acquisition, NSA is required to conduct acquisitions "in a manner designed, tothe greatest extent reasonably feasible, to minimize the acquisition of information not relevant tothe authorized purpose of the acquisition." NSA Minimization Procedures§ 4(a). The FBI must
follow its targeting procedures in conducting acquisitions. See FBI Minimization Procedures§ II.A. I. CIA and NCTC do not conduct acquisitions under Section 702.
Regarding handling of information after acquisition, the procedures of all four agencies:•

set criteria for the indefinite retention of information of or concerning UnitedStates persons and generally applicable timetables for destroying information that
does not meet those criteria, see NSA Minimization Procedures§ 4; FBI
Minimization Procedures§ III.C.l.b, 0.4, E.4; CIA Minimization Procedures§§ 2, 3; NCTC Minimization Procedures§ B.2, 3;•

provide special rules for protecting attorney-client communications, see NSA
Minimization Procedures§ 5; FBI Minimization Procedures§ IIl.O.5 , E.6; CIA
Minimization Procedures § 7.a; NCTC Minimization Procedures§ C.5;•

set standards and procedures for disseminating information, see NSA
Minimization Procedures§§ 8, 10; FBI Minimization Procedures§ IV; CIA
Minimization Procedures §§ 5, 7.c; NCTC Minimization Procedures§ D; and•prescribe procedures for obtaining technical or linguistic assistance from otheragencies and/or foreign governments, see NSA Minimization Procedures§ 1l(b);FBI Minimization Procedures§ IV.D; CIA Minimization Procedures § 7.b; NCTC
Minimization Procedures§ D.5.

16

( ••• continued)

necessary to render it into a form in which it can be evaluated to determine
whether it reasonably appears to be foreign intelligence information or to benecessary to understand foreign intelligence information or assess its importance.
NCTC Minimization Procedures § A.3.d.

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The minimization procedures also address situations in which the government reasonably
believed at the time of acquisition that the target was a non-U.S. person outside the UnitedStates, but later learns that the target actually was a U.S. person or inside the United States. The
Court has concluded that such acquisitions are authorized under Section 702. See September 4,2008 Opinion at 25-27. Nonetheless, the procedures of each agency require destruction of suchinformation unless the head of the agency authorizes its retention after making certain findings
regarding the specific infonnation to be retained. See NSA Minimization Procedures§§ 4(d), 6;
FBI Minimization Procedures§ III.A.3; CIA Minimization Procedures§ 8; NCTC Minimization
Procedures § B.4.
In response to Section 702(f)(l)(B), each agency's querying procedures containrecordkeeping requirements for use of U.S. -person query tenns. See NSA Querying Procedures§ IV.B; FBI Querying Procedures§ IV.B; CIA Querying Procedures§ IV.B; NCTC Querying
Procedures§ IV.B. They permit CIA and NCTC personnel to conduct queries of unminimized
Section 702 information for intelligence-analysis or investigative purposes only if they arereasonably likely to return foreign intelligence information. See CIA Querying Procedures§ IV .A; NCTC Querying Procedures § IV .A. That is also the rule for NSA personnel, see NSA
Querying Procedures § IV.A, except for certain travel-vetting queries, see infra pp. 44, 50-51,
53-55. FBI personnel may conduct such queries only if they are reasonably likely to return
foreign intelligence information or evidence of a crime. See FBI Querying Procedures § IV .A.

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B.

Minimization and Querying Procedures for the FBI, CIA, and NCTC

The minimization and querying procedures for the FBI, CIA, and NCTC under the 2023
Certifications are identical to those submitted with the 2021 Certifications and approved by the
Court in April 2022. March 13, 2023 Memorandum at 2-3 nn.2-3; see also April 21, 2022
Opinion at 58. The Court finds that those procedures, as written, satisfy applicable statutory
requirements. The NSA's minimization and querying procedures are discussed below.

C.

NSA's Minimization and Querying Procedures

The minimization and querying procedures for NSA include revisions regarding retentionof information for oversight purposes. They also include substantial modifications regarding two
subjects : the definitions of"query" and "processing" and travel vetting. Because NSA's use ofor purposes other than travel vetting presents related issues regarding
implementation, those uses are also examined in this section.
1.

Retention for Oversight Purposes

Heretofore, NSA's minimization procedures have authorized activities necessary for two
specified oversight functions and provided that,[s]hould NSA determine it is necessary to deviate from an aspect of theseprocedures to perform lawful oversight functions of its personnel or systems apartfrom those described ... , NSA shall consult with NSD and ODNI prior to
conducting such an activity. NSD shall promptly report the deviation to the FISC.
NSA Minimization Procedures§ 2(b)(5) (accompanying the 2021 Certifications). The NSA
Minimization Procedures now before the Court specify a third oversight function justifying
deviation from otherwise applicable requirements: "activities necessary to ... review, approve,or audit queries of section 702-acquired information." NSA Minimization Procedures § 2(b)(5)c.

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iJa8 P RIH.iUiJa;li'il,HJI 8FOlll' 1/i?IOA
This revision comes against a backdrop of prior invocations of section 2(b)( 5) to deviate
from retention limits or destruction requirements that would otherwise apply to Section 702
information within documentation of queries kept for oversight purposes. "In May 2021, NSA
advised NSD that it is retaining, as part of query audit records

cquiredpursuant to various FISA authorities that have been used as query terms, without regard tootherwise applicable destruction requirements." April 21, 2022 Opinion at 78. The pertinent
audit records were in a "post-query review system"

reliminary Noticeof a Potential Compliance Incident Regarding the Unauthorized Retention of Information
Acquired Pursuant to FISA and Notice of a Section 702 Minimization Procedures Deviation at 2
& n.2 (Nov. 28, 2022) ("November 28, 2022 Deviation Notice"). The government relied on
section 2(b)(5) as grounds to continue to retain th

hat had been used as

query terms. Preliminary Notice of a Potential Compliance Incident Regarding the Unauthorized
Retention of Information Acquired Pursuant to FISA and Notice of Deviation Pursuant to NSA' s
Section 702 Minimization Procedures at 3 (Oct. 15, 2021). The Court found "that NSA 's
retention of query audit records to date has been reasonable under the circumstances," but
expected "to be updated regarding the length of the applicable retention period." April 21, 2022
Opinion at 79. The government now has advised that NSA will retain such query records for up
to ten years from the date of the query. See Supplemental Notice of a Potential Compliance
Incident Regarding the Unauthorized Retention oflnformation Acquired Pursuant to FISA and
Notice of Deviation Pursuant to NSA 's Section 702 Minimization Procedures at 3 (Mar. 9,2023). The Court finds that ten-year period to be reasonable.

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Authorized for Public Release by ODNIIn November 2022, the government gave notice of a similar incident involving an NSA
which includes a tool for analysts to request approval of

workflow syste

U.S.-person query terms. November 28, 2022 Deviation Notice at I. These requests can include
After the query is run, the request becomes part of

FISA-acquired text o

The government reported that purge

the query record and is retai_ne

but not against text entries. Id.

checks are run daily against theay contain Section 702 data subject to purge requirements. As withre maintained for audit and oversight purposes andthe government invoked section 2(b)(5) as a basis for not removing fro

ection702 information otherwise required to be purged. Id. at 3. 17 NSD and NSA are discussing theappropriate retention period for query record
Concerning Compliance Matters Under Sectiond. at 4; Quarterly Reportat 49 (Dec. 16, 2022) ("December

2022 QR"). 18 The Court expects to be updated on this point as soon as practicable.
The new exemption in section 2(b)(5)c would permit retention of information for audit
and oversight purposes in the circumstances described above. By referring to activities necessary
to "review, approve, or audit queries," it also has the potential to sweep more broadly. On
balance, in view of the value of oversight of querying practices and the requirement that "NSA17

NSD discovered the potential over-retention while "conducting routine oversightactivities," id. at I, which suggests that NSA did not consult with NSD and ODNJ prior to
conducting the activity in question, as required by section 2(b)(5).
18

Similarly titled quarterly reports on Section 702 compliance issues are cited in the form"[month and year of filing] QR."

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161 t!Jt!!CM! I}) $£)1 ◄ Of 01<10 I IJK
personnel ... limit the scope of their deviation" from otherwise-applicable requirements "andcomport with all other provisions ... to the maximum extent practicable," NSA Minimization
Procedures § 2, this revision does not impede a finding that the NSA Minimization Procedures
comport with§ 180l (h).
2.

Definitions of "Query" and "Processing"A revised definition of "processing" appears in NSA' s minimization and querying
procedures and a revised definition of "query" appears in NSA's querying procedures.
"Processing" is defined as "any action necessary to convert unminimized section 702-acquired
information into an intelligible form," as well as "any machine-initiated action designed to
identify, curate, label, or organize such information;" however, "processing" does not include "anaction that ... presents information for human inspection" or that "produces and makes
affirmative use of information for investigative, intelligence analysis, or preventative purposes"
by "means that do not involve human inspection." NSA Minimization Procedures§ 3(i); NSA
Querying Procedures § Ill.A. Although the definition of "processing" applies to use of that termin the minimization procedures, see, e.g., § 2(b)(3), its primary work is to modify the definitionof "query," which now excludes "activities that constitute the processing of unminimized section
702-acquired information." NSA Querying Procedures§ III.A. The combined effect of thesedefinitions is that querying rules, such as the requirement that queries must be reasonably likely
to retrieve foreign intelligence information and that records must be kept of U.S.-person query
terms, do not apply to processing actions. The Court must determine whether these definitions
are consistent with the statutory definition of "query" as "the use of one or more terms to retrieve'f'0P 91BCRE'f'h'91/fN0F0R."'f,'FISA

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'f6P SECM 'fffSlfffti6POft~NfFIS1':
the unminimized contents or noncontents located in electronic and data storage systems ofcommunications of or concerning United States persons obtained through [Section 702]
acquisitions." § 702(t)(3)(B).
Under an interpretation advanced by the government, an action does not constitute a"query" under the statutory definition unless (I) the person conducting the operation specificallyintends to return communications of or concerning U.S. persons (2) for the purpose of humaninspection outside of an agency's storage systems. See Gov't Legal Assessment Oct. 28, 2022 at

l 0. Both of these elements, and Amicus's responses to them, are examined below.
a.

Intent to Return U.S.-Person Communications

The government describes an analyst's "use [of] a known United States person's name,phone number, or other similar term to return information for review" as an example of an actionthat satisfies its asserted specific-intent requirement. 19 Id. at 6. In contrast, the government
posits that an analyst's use of "a foreign target's name, phone number, or other term to return
unminimized information for review ... would not be a query" under the statutory definition. Id.
at 7. In Amicus's view, an operation may constitute a "query" if it is designed to and likely will
retrieve information from Section 702-acquired communications that include communications ofor concerning U.S . persons. Amici Reply Jun. 6, 2022 at 4-1 0.

19

The government seems to acknowledge that retrieval of information from
communications of or concerning U.S. persons can constitute a query, even if such
communications are not returned in their entirety. Id. at 6-7 ( use of identifiers for a known U.S.
person "to return information for review . .. would constitute a query" under the statutory
definition) (emphasis added). The definition of "query" in NSA's procedures refers to retrievalof "the unminimized contents or noncontents (including metadata) of section 702-acquired
information." NSA Querying Procedures§ III.A (emphasis added).

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1 "' :nseM:. I;; 2'1nH01' Offl U'Pl1':Pl
Previously, the FISC declined the government's invitation to interpret Section
702(f)(3)(B) as having such a specific-intent requirement. In that case, the Court only needed toconclude that "searches of government systems that are neither likely to retrieve ... unminimized[U.S.-person] communications nor intended to do so fall outside the statutory definition of'query.''' Docket Nos. 702(j)-l 9-0 l , et al., Mem Op. and Order at 38 (Dec. 6, 20 19) ("December
6, 20 I 9 Opinion"). On that basis, the Court found that searches of user activity monitoring(UAM) systems are not queries as defined at Section 702(f)(3)(B). See id.20
There is no need for the Court to go further in this case. The government's statutory
interpretation notwithstanding, the definition of "query" in NSA's procedures refers to ''the useof one or more terms to retrieve the unminimized contents or noncontents (including metadata)of section 702-acquired information that is located on an NSA system." NSA Querying
Procedures § III.A (footnote omitted). Neither that core definition nor the specified exclusions
from it refer to the intended or likely return of U.S.-person information or communications. The
same is true of the definition of "query" in the other agencies' procedures. See FBI Querying
Procedures § III.A; CIA Querying Procedures § III.A; NCTC Querying Procedures § Ill.A. For
that reason, the Court does not need to delve further into this specific-intent issue to evaluate therevised definitions of "processing" and "query."20

NSA "searches conducted in [UAM] systems" are excluded from the definition of"query" in NSA's procedures, "so long as the only unminimized section 702-acquired
information that the searches run against are in records captured through [UAM]." NSA
Querying Procedures § III.A.
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if 8f 81!l@MJ•11819,if fOPOM f,'21Bab.

Human Inspection of Responsive Information

The government has argued that a "query" does not occur - and specifically that
information is not "retrieve[d)" for purposes of the statutory definition - unless and until it isreviewed by a human analyst. October 18, 2021 Memorandum at 17 n.9; Gov't Resp. May 26,
2022 at 10-11, n.6. But the text of Section 702(f)(3)(B) gives no indication that human review isnecessary for a query to occur. The government's interpretation, moreover, conflicts with thelanguage of another provision of Section 702(f), under which the FBI, in describedcircumstances, "may not access the contents of communications . .. that were retrieved pursuant
to a query made using a United States person query term." § 702(f)(2)(A) (emphasis added).
This language makes clear that queries resulting in the retrieval of information must becompleted before the information retrieved by the queries can be accessed by analysts for review.
In subsequent submissions, the government used language that can be understood to focus
on whether an action returns information for the purpose of human inspection, rather than onwhether such inspection actually occurs. See Gov't Reply Feb. 7, 2023 at 6 ("A query must
'retrieve' information - terms must be used for the purpose of bringing back information forhuman review."). Such an approach avoids clashing with the language of Section 702(f)(2)(A),
but it remains unclear why such a purpose is necessary for an action to qualify as a "query" under
the statutory definition.
The government seeks to derive a human-inspection requirement from the part of thedefinitional language that refers to "retriev[ing) the unminimized contents or noncontents locatedin electronic and data storage systems.'' § 702(f)(3)(B). It suggests that information "has been

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'fOP SECRE'fh'Sth'NOFORNfPIS1\:'retrieved' for purposes of the Act's definition of query only if it is returned to a human forinspection .... [W]hen information is returned to a human, that information has been retrieved."
Gov't Legal Assessment Oct. 28, 2022 at 10. Both the government and the Amicus cite general
dictionary definitions of "retrieve" that incorporate the idea of finding and bringing something
back. See id. at 9; Gov't Reply Feb. 7, 2023 at 6; Amici Br. May 9, 2022 at 9 & n. 7. Based onsuch definitions, the government analogizes to parking: a customer's car is retrieved from valet
parking if it is brought back to the customer, but it is not retrieved if an attendant just moves itfrom one parking space to another. So too, on the government's account, information located inelectronic and data storage systems must be presented to a human analyst for it to be retrieved;
merely moving it from one storage system to another is not retrieval. See Gov't Reply Feb. 7,2023 at 7-8.
This analysis is unpersuasive because Section 702-acquired information is not in thepossession ofNSA analysts before it is put into electronic and data storage systems. Rather, therelevant data flow is generally from the system or network of an electronic communication
service provider to a government collection point, and then into an electronic and data storage
system, where it first may become accessible to an analyst.2' To "retrieve" can mean to bringsomething back to its prior location or possessor, but that particular meaning does not apply here.

21

Another difference from physical retrievals is that electronically stored information isoften copied for retrieval, so that the information retrieved may also persist in storage. The
government acknowledges that a query may occur even when the retrieved information remains
stored. See Gov't Legal Assessment Oct. 28, 2022 at 12-13 ("the statutory definition of query is
triggered only if unminimized communications of a U.S. person are intended to be returned to ahuman, even if the information continues to be stored in NSA's systems").
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Authorized for Public Release by ODNIIt is more useful to look to the meaning of "retrieve" (and by extension "retrieval") in thespecific context of electronic storage.22 Dictionaries cited by the government and Amicus define"retrieve" in this context as "to recover from storage" and "to gain access to (stored
information"). See Amici Br. May 9, 2022 at 9; Gov't Reply Feb. 7, 2023 at 7 n.5. Publicly
available online resources offer similar definitions. 23 The government and Amicus disagree
about how to apply these concepts to automated actions that do not result in human inspection,
but rather use search terms to identify responsive information in a storage system and cause it to
be stored separately in a form that facilitates future inspection or use. Amicus contends that, forpurposes of Section 702(f)(3)(B), such actions retrieve information located in electronic and data
storage systems, see Amici Br. May 9, 2022 at 9-1 O; Amicus Resp. Jan. 24, 2023 at 5-6, while
the government argues that they do not, see Gov't Legal Assessment Oct. 28, 2022 at 13; Gov't
Submission Jan. 10, 2023 at 2 l.

22

See, e.g., Van Buren v. United States, 141 S. Ct. 1648, 1657 (2021) ("Wheninterpreting statutes, courts take note of terms that carry 'technical meaning[s]."') (citing A.
Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 73 (2012)); Scalia at 441(defining "technical-meaning exception" as "[t]he doctrine that the ordinary-meaning canon does
not apply when a word or phrase that has acquired a specialized or peculiar meaning in a given
context appears in that context"). In Van Buren, the Supreme Court looked to the meaning of"access" "[i]n the computing context" in order to interpret a statute that used the term "access" inthat context. Van Buren, 141 S. Ct. at 1657.
23

For example, Techopedia provides the following definition of "data retrieval:" "In
databases, data retrieval is the process of identifying and extracting data from a database, basedon a query provided by the user or application. It enables the fetching of data from a database inorder to display it on a monitor and/or use within an application." Data Retrieval, Techopedia(May 22, 2014), https://www.techopedia.com/definition/30140/data-retrieval. Another source
defines "information retrieval" as "recovery of information, especially in a database stored in acomputer." Information retrieval, Britannica (Mar. 3, 2023),
https://www.britannica.com/technology/infonnation-retrieval.

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if8f 819@Mif;l;fEJl;\lf8F8ft0'1101 I

The government's position rests in part on the view that information is not "retrieved"
when it is copied from one NSA storage system to another because it does not leave electronicstorage. See Govt. Legal Assessment at 13 ("A process that reads information from an NSA
system and writes its output to an NSA system has not brought back information."). But Section
702(f)(3)(B) refers to retrieving "unminimized contents or noncontents located in electronic anddata storage systems" (emphasis added), not from electronic and data storage systems. Even if
the term "'(r]etrieve' necessarily implies a distinction between the initial location of thegrammatical object and its end location," Gov 't Reply Feb. 7, 2023 at 6-7, it does not foreclose
an interpretation under which information could be "retrieved" from one NSA electronic and data
storage system to be placed in another.
The government also argues that interpreting the definition of query to encompass
transfers of information from one system to another would "produce( ] anomalous results
because the statute provides no insight into where one 'system' ends and another begins." Govt.
Legal Assessment at 13. The statute itself may not provide much guidance on this point, but
NSA factually distinguishes among various systems that receive and send information in a seriesof automated actions. See NSA Deel. Aug. 23, 2022 at 12- 14.
Amicus, on the other hand, advances an interpretation of Section 702(f)(3)(B) underwhich any operation that uses terms to identify unminimized Section 702 data information to becopied into a new storage system would constitute a "query," provided that some of that
information is from U.S .-person communications. See Amici Br. May 9, 2022 at 8-10, 13;'fOf SECRiffHSIMNOfilORN;'FIS:A:

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1'8P 81!3@Mifff81s)'*8P8ttU;lfi118A
Amicus Resp. Jan. 24, 2023 at 5-7. On this view, it is immaterial whether the information inquestion is accessed, reviewed or used in intelligence or investigative analysis.
This approach significantly departs from prior FISC decisions, which have focused on"querying rules" as measures "that guard against the indiscriminate review and use ofU.S.person information." October 18, 20 18 Opinion at 64. Moreover, previously-approved
procedures include carve-outs from querying requirements for actions that do not result in humaninspection of unminimized Section 702 information. See, e.g., NSA Querying Procedures§ III.A(accompanying the 2021 Certifications) (excluding from procedures' definition of "query"circumstances "where the user does not receive unminimized section 702-acquired
information . . . either because the user has not been granted access to the unminimized section
702-acquired information, or because a user who has been granted such access has limited thequery such that it cannot retrieve unminimized section 702-acquired information"). In contrast,
Amicus's interpretation extends what constitutes a query further back into NSA's automatedoperations, so that a Section 702-acquired communication could be retrieved by a query without
being reviewed by analysts or used for investigative or intelligence-analysis purposes. For'.iliiOR S:FGPF'.ilii11SI '0IOFOPNWW t

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Ffi8P Ol!@Mif;1;1QIONOFOWf/FIOhexamines Section 702-acquired information "to determine what
processing should be performed." Id. at 29. Among other things, it

ased on the information provided, each of these steps can plausibly be regarded as using"terms,"conduct "queries" under the Amicus's interpretation.
This expansive interpretation, which would treat as querying much ofNSA's automated,
post-acquisition handling of Section 702 data, would have substantial consequences. It would
require NSA to implement a "technical procedure whereby a record is kept of each United States
person query term" used in the course of preparing Section 702-acquired information forquerying and intelligence analysis. § 702(f)( 1)(B). Agencies have some leeway under thisrequirement, particularly when they are not reasonably in a position to know pre-query whether aterm is associated with a U.S. person. See infra note 37. But, to the extent practicable, NSA
would have to devise means of making such records.
The relevant statutory context supports an interpretation closer to the one propounded by
the government. Section 702(f) sets out three requirements: (1) that the AG and DNI adopt
querying procedures that are consistent with the requirements of the Fourth Amendment,

24

See NSA Querying Procedures

include " keywords, identifiers,

TOP UIJOJ:W'.F;f:IUl:%'Jf9F9IVJ:'li110Jz

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Authorized for Public Release by ODNI'.JiOP 8FJ OMiiii'i'Ol1':lftJOFOWVFIO/t§ 702(f)( l )(A); (2) that, under narrowly specified circumstances, FBI personnel obtain a FISC
order before accessing the contents of communications retrieved by using a U.S .-person query
term, § 702(f)(2)(A), (E); and (3) that querying procedures "include a technical procedure
whereby a record is kept of each United States person query term used for a query," see§ 702(f)( l )(B). The first two requirements are plainly aimed at guarding against unreasonable
intrusion into U.S.-person communications. The FISCR regarded the second requirement, inparticular, as "intended to address ... compliance with the Fourth Amendment." See In re

DNIIAG 702{h) Certifications, 941 F.3d at 559. And the FISCR has taken the legislative history
to "suggest[ ] that Congress enacted" the third, recordkeeping requirement "in part to respond toconcerns that the intelligence community' s querying practices might ... intrude on United States
persons' privacy" and "envisaged that the records Section 702(f)(l)(B) requires would beavailable for its oversight." Id. at 56 1-62.
Yet Amicus's approach would extend Section 702(f)(3)(B)'s recordkeeping requirement
to a wide range of actions internal to NSA 's systems that do not implicate U.S . persons' privacy
to any meaningful extent.25 Automated actions that convert Section 702-acquired data into
intelligible and queryable forms do not meaningfully infringe on U.S. person's privacy, eveninsofar as they operate on communications to or from U.S. persons. They do not, in and of25

A similar point can be made about FISA' s public-reporting requirements for queries.

See 50 U.S.C. § 1873(b)(2)(B)-(C) (DNI shall annually publish "good faith estimate(s)" of"thenumber of search terms concerning a known United States person used to retrieve theunminimized contents of electronic communications or wire communications obtained" under
Section 702 and "the number of queries concerning a known United States person ofunminimized noncontents information relating to electronic communications or wirecommunications obtained" under Section 702").

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'fOf SECM'fh'Slt,'NOfORNfF'IS,\
themselves, deprive such U.S. persons of ''the protection of anonymity," April 21 , 2022 Opinion
at 62, or result in inspection of private communications or heightened governmental scrutiny orinvestigative interest. Rather, those consequences ensue only if further steps are taken, including
but not limited to review of such communications by analysts.
By the same measure, the government's interpretation of what it means "to retrieve"
Section 702-acquired information for purposes of Section 702(f)(3)(B) is unduly narrow because
it makes human inspection (or at least retrieving information for the purpose of humaninspection) a sine qua non of a "query. " 26 It is true that Section 702(f)(2) indicates that Congress,in the context of FBI law-enforcement efforts, focused on human inspection as a point at which
substantial intrusion on Fourth Amendment-protected interests may occur. But automatedanalysis of private communications could, without human inspection, significantly disadvantage
U.S. persons, e.g., an algorithm that analyzes Section 702-acquired communications to identify

26

In the computer context, the terms "query" and "retrieval" do not necessarily convey
actions for the purpose of human inspection. See supra note 23 (definition of "data retrieval"that refers to "the fetching of data from a database in order to display it on a monitor and/or use
within an application") (emphasis added); Query, Computer-Dictionary-Online.org (last visited
Apr. 6, 2023), https://www.computer-dictionary-online.org/definitions-q/query.html (defining"query" as "A user's (or agent's) request for information, generally as a formal request to a
database or search engine"); User, Computer-Dictionary-Online.org (last visited Apr. 6, 2023),
https://www .computer-dictionary-online.org/definitions-u/user.html (defining "user" as "Anyperson, organisation, process, device, program, protocol, or system which uses a service provided
by others"); Agent, Computer-Dictionary-Online.org (last visited Apr. 6, 2023),
https://www.computer-dictionary-online.org/definitions-a/agent.html (defining "agent" "[i]n theclient-server model" as "the part of the system that performs information and exchange on behalfof a client or server").
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persons to be put on a list for heightened scrutiny during air travel. 27

see infra p. 46, suggest that this possibility is not far-feiched from a technological perspective.
In October 2022, the government submitted draft definitions of "processing" and "query"that were premised on the understanding that, in order to be a quety, an action must be for the
purpose of human inspection. See Govt. Legal Assessment at 52-53. After discussions with the
Court through its staff, the government revised these definitions. The definition of"processing"now before the Court excludes an action that "presents information for human inspection" or that"produces and makes affirmative use of information for investigative, intelligence analysis, or
preventative purposes" by "means that do not involve human inspection." See supra p. 29 . As aresult, actions that meet the second criterion are excluded from "processing," and therefore may
constitute queries if the other definitional elements are met. The Court is satisfied that, if thesedefinitions are properly applied, actions within the statutory definition of "query" will beappropriately treated under NSA's procedures. In addition, by clarifying that querying
requirements may apply to automated actions that do not involve human inspection but
nevertheless make affirmative use of information for investigation or intelligence analysis, theybolster the basis for finding that these procedures, as written, satisfy the definition of"minimization procedures" at § 1801 (h)(l ),21

See generally Emily Berman, A Government ofLaws and Not ofMachines, 98 B.U.
L.Rev. 1277, 1339-1348 (Oct. 2018) (discussing use of algorithms to focus investigative
attention on persons who fit a particular pattern or to predict persons who pose a threat).
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Proper Application of the "Processing" and "Ouezy" Definitions

It is necessary, however, for these definitions to be applied in a way that does not
artificially sever the use of tenns to search for and identify particular infonnation from theretrieval of infonnation so identified. NSA's use of tools
llustrates this point.
The government describess "a processing capability'' that

efficiency by obviating the need for analysts to conduct complex queries to find suchinformation. Id. at 6.
The government takes the view that the action0

not constitute a query, or even part of a query. Rather, the government regards the query as

Page 41

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Authorized for Public Release by ODNIIOI SECl&l))§l))ICbflblGOI ISAo generate the notices to analysts" - as the only query terms involved. Id.
at 5 n.3. Because these "identification numbers are not United States person query terms," NSA
always records these queries "as non-United States person queries, regardless of what terms
used to create analyst notifications." Id.
The Court rejects this view. If, as the government admits, the above-described sequence
involves retrieval of information by queries, then the terms used to scan unminimized Section
702 data to identify information for analysts to review are the terms used in those queries. That
conclusion is not altered by the fact that, in order to see responsive information, analysts mustclick on links provided for that purpose. Otherwise, through a similar bifurcation, an agency
could use U.S.-person identifiers to scan Section 702 information to find information about
particular U.S. persons of investigative interest, and alert analysts when there is responsive
info1mation. If the agency sets up its system so that it retrieves such information only byreference to an agency-assigned identifier, it could, by the government's logic, claim that no
U.S.-person query term was used for purposes ofrecordkeeping under Section 702(f)(J)(B) or, inthe case of the FBI, the FISC-order requirement under Section 702(f)(2).
tential evasions of querying requirements, it must be recognized thatto review information of interest only
cated that information. In suchuse of query terms to search forsituations, the query

In the terminology

desired information anof the pertinent definitions in NSA's procedures, the searching by

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should be regarded as a single "action," which is not "processing"

retrievalbecause it retrieves information for human inspection. See supra p. 29. Instead, the action falls
under the definition of "query" because it uses terms to retrieve unminimized Section 702
information located in an NSA system. See NSA Querying Procedures § III.A, at 2.
In this specific context, however, the practical consequences of misidentifying what
actions constitute queries and what query terms are used do not appear substantial. On theinformation provided, the Court expects thatay be sufficiently

query terms. In addition, the information identified b

likely to be foreign intelligence information that the querying standard is satisfied. Accordingly,
o not call into

compliance concerns regardin

question whether, taken as a whole, the NSA querying and minimization procedures, as written,
satisfy the statutory requirements for such procedures. Nonetheless, the Court is directing thegovernment to report on how NSA will ensure that use of those systems will conform to those
procedures and the Court's above-stated interpretation of them. See infra p. 117.

3.

Travel Vetting

NSA's travel vetting is in response to Presidential directives in National Security
Presidential Memorandum-9, National Security Presidential Memorandum-7 (NSPM-7), and thePresidential Proclamation on Ending Discriminatory Bans on Entry to the United States28 to

28

Under these directives, the sharing and use of "national security threat actor
information" must be consistent with applicable law, and such information must be maintained
and used "in a manner that appropriately protects individual's privacy, civil rights, civil liberties,
and other constitutional and statutory rights, including through compliance with applicable(continued ...)TOP 9ECtfflTh'9L'IP(6f 6ttN,'PISA

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support DHS and DOS in ensuring that applicants do not pose a threat to national security.
March 1, 2022 Memorandum at 5. Section IV.D of the NSA Querying Procedures is the primary
provision regarding the NSA's Vetting Process.29 It states:
Notwithstanding subsection IV .A of these procedures, NSA may use certain
unminimized section 702-acquired information for valid counterterrorism foreign
intelligence purposes as directed to support the federal government's vetting of
non-United States persons who are being processed for travel to the United States
or a benefit under U.S . immigration laws (a "travel or immigration applicant").
NSA Querying Procedures§ IV.D. The "notwithstanding" clause is noteworthy because section
IV.A requires queries of unminimized Section 702 information to be reasonably likely to retrieve
foreign intelligence information. Thus, any queries conducted under section IV .D need notsatisfy that standard. In that regard, section IV.D breaks new ground. A lthough the FISC has
approved exceptions to this general standard for certain purposes,30 previously approved
procedures have required that queries of unminimized Section 702 information for investigative
or intelligence-analysis purposes be reasonably likely to retrieve foreign intelligence informationor, in the case of the FBI, evidence of crime.

28( ••. continued)

guidelines governing the collection, retention, and dissemination of personally identifiable
information." NSPM-7 § 3.
29

In this opinion, "the Vetting Process" refers to the specific travel-vetting processdescribed in the March 13, 2023 Submission.
30

See, e.g., NSA Querying Procedures§ IV.C.5 (queries to identify information that must
be produced or preserved in connection with litigation); § IV.C.6 (queries to "perform lawful
oversight functions of NSA's personnel or systems").
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Section IV.D does not, however, permit any type of query for travel-vetting purposes.
Rather, it authorizes NSA to take three specifi c steps. In the first step, under section IV.D.l,
NSA uses an automated process to scan

In the second step, under section IV.D.2, NSA automatically compares non-U.S. person
identifiers from travel or immigration applications

o determine whether

he "TERR" NIPF topic encompasses "information that supports
efforts to detect and prevent terrorism directed at U.S. citizens, interests, and allies, and to
identify and locate terrorists and their support networks." Id

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I bi SECMl))Sihi ◄ bl•bfu4)fii3A
any applicant is a terrorism-related target

ny U.S.-person identifier
each application "for indicators that the applicant may be a U.S. person,'running comparisons only for identifier
re used by a U.S. person. Id. at 10.
NSA is also not authorized to run agains

identifier"that NSA knows, or reasonably should know, are located or reside inside the United States."§ IV.D. It uses filtering and other methods to avoid doing so. See NSA Deel. Mar. 13, 2023 at
10-11.
In the third step, an NSA analyst may "[r]eview the section 702-acquired information
underpinning [a] match to assess the analytic significance of the travel or immigration applicant's
connection to an international terrorism target." § IV.D.3 .

33

The government has advised that "analyst review is required before any disseminationof Section 702-acquired information." NSA Deel. Aug. 23, 2023 at 52. The Court understands
that this notification to DHS and DOS does not include Section 702-acquired information;
however, this policy has been violated in ~ontext. See infra p. 98.

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ection 702-acquired information on th

but is not required to do so. Id. at 14-16.
Rather, the analyst may proceed directly to reviewing the Section 702-acquired information that
See§ IV.D.3.

was the basis

at 17. Further queries of unminimized Section 702 information must conform with the generallyapplicable requirements of section IV .A of the NSA Querying Procedures, including that queries
must be reasonably likely to retrieve foreign intelligence information. § IV.A.4; NSA Deel. Mar.

13, 2023 at 18.

a.

Querying Requirements

NSA's querying procedures must comply with the recordkeeping requirement for U.S.person query terms and be consistent with the requirements of the Fourth Amendment. See§ 702(t)(l )(A)-(B). For the reasons stated below, the Court finds that NSA's procedures satisfy
that recordkeeping requirement in the context of the Vetting Process. Fourth Amendment issues
respecting the Vetting Process are discussed below. See infra pp. 76-81.

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I bi SELKE I ))3f))f ◄ bl· ORl ◄ JII ISA"NSA must generate and maintain an electronic record of each United States person
query term used for a query" of unminimized Section 702 infonnation, including among otherinformation "the query term(s) used or approved" and "the statement of facts showing that theuse of the query term(s) is reasonably likely to retrieve foreign intelligence information, as
defined by FISA." NSA Querying Procedures § IV .B. l . If "it is impracticable for an NSA
system to generate an electronic record," or a "circumstance arises that prevents the generation"of one, NSA must make a written record that contains the same information. Id. § IV.B.2.

(i)

Generation

This recordkeeping requirement only applies to U.S.-person query terms "used for aquery." Id. § IV.B. l. The procedures exclude ''activities that constitute the processing of
unminimized section 702-acquired information" from their definition of "query." See supra p.
29. They further define "processing" to include "any machine-initiated action designed to
identify, curate, label, or organize" "unminimized section 702-acquired information," provided
that such action does not "present[ ] information for human inspection" or "produce[ ] andmake[ ] affirmative use of information for investigative, intelligence analysis, or preventative
purposes," "using means that do not involve human inspection." NSA Querying Procedures§ III.A. Under those definitions, generation ofin the first step ofnsofar as it draws on raw Section 702 information, is a type of processing: it is amachine-initiated action designed to curate and organize raw Section 702 information for later
use. In and of itself, generating

does not present information for humaninspection and does not affinnatively use information for investigative, intelligence-analysis, or

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'fOP s@@M'f1%•s10, ,oro ... ,:'P1s,1t
preventative purposes. It follows, under these definitions, that generatingdoes

not involve queries.
Consistent with Amicus's more expansive interpretation of Section 702(f)(3)(B)'s
definition of "query," see supra pp. 34-39, Amicus has argued that queries, as defined by the

See Amici Br. May 9, 2022 at 13. But, the Court

statute, are used to generate

has found that defi nition inapplicable to automated actions that do not result in human inspectionof information or affirmative use of it for investigative or intelligence-analysis purposes, but
merely prepares it for such inspection or use in the future. See supra 37-40. Accordingly, theCourt concludes that generating

oes not involve queries as defined at Section

702(f)(3)(B) and therefore does not implicate the recordkeeping requirement at Section
702(f)(l)(B).
Moreover, even if it were assumed thatitappears that they rarely would make use of U.S.-person query terms. The automated actions thatscan raw Section 702 information to identify and

NSA Deel. Mar. 13, 2023 at 4-5. The
Court understands that such scanning uses these counterterrorism
ould be used by a U.S.

- T here is no reason to expect that such

person. Section 702 acquisitions are conducted under targeting procedures that the Court has
found to be reasonably designed to prevent targeting of U.S. persons. See supra pp. 20-21; April

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21, 2022 Opinion at 13-17, 71 -73, 109-115. Those procedures require NSA to terminate
acquisition without delay if it determines, through post-tasking analysis, that a Section 702 target
is a U.S. person. NSA Targeting Procedures§ II at 8. NSA is similarly prohibited from targeting
U.S. persons in non-FISA acquisitions under Executive Order No. 12333. 35(ii)

In the second step of the Vetting Process, NSA runs an automated comparison of

Amicus has argued that, in the second step, the automated comparison of applicant's·s a "query" as defined at Section 702(f)(3)(B) andidentifiers withthe analyst's examination of the underlying Section 702 information in the third step constitutes
review of query results. Amici Br. May 9, 2022 at 13-1 5. The government has contended
otherwise, on the grounds that in this context NSA lacks specific intent to retrieve information35

See 50 U.S.C. § 1881c(a)(2) ("No element of the intelligence community may
intentionally target, for the purpose of acquiring foreign intelligence information, a United States
person reasonably believed to be located outside the United States under circumstances in which
the targeted person has a reasonable expectation of privacy and a warrant would be required if
the acquisition were conducted inside the United States for law enforcement purposes" unless the
U.S. person is targeted under a FISC order or a FISA emergency authorization by the AG).
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concerning U.S. persons. Gov't Resp. May 26, 2022 at 10-12. Here too, it is unnecessary for the
Court to decide whether NSA must act with such specific intent in order to conduct a "query," asdefined by the statute.
First, the above-described sequence of events involves a "query," as defined in NSA's
procedures. Applicants' identifiers are used as terms to identify and retrieve raw Section 702
information for analysts to review.
See supra pp. 42-43. The terms used to conduct
these queries are the applicants' identifiers that are compareo theextent that such identifiers are U.S.-person query terms, records of their use should be created inconformance with Section IV.B of NSA's querying procedures. It is noteworthy that NSA takes
ee supra p. 46. Thosepains not to compare U.S.-person identifiers

efforts generally appear to be effective, although some U.S.-person identifiers have slipped
through.36 On balance, in view ofNSA's avoidance efforts and the flexible nature of thisue to an error in a DOS system. Notice of Matter Under Investigation at I (Mar. 62023). NSA ascertained that it had received from DOS 498 applications submitted by LPRs
since November 2020. Final Update to Notice of Matter Under Investigation at 3 (Apr. 3, 2023).
Further investi ation revealed that identifiers for onl four of these LPR a Iicants werecomparedd
Id at 3-4. As of February 2023, NSA implemented system changes toautomatically prevent identifiers from applications coded by DOS as submitted by an LPR fromrunning againsnd DOS corrected its system to prevent requests for NSA tovet such applic~

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recordkeeping requirement,37 the Vetting Process does not detract from the Court's ability to findthat NSA's procedures satisfy Section 702(f)(l)(B).
b.

Minimization Requirements

As previously noted, section IV.D ofNSA's querying procedures exempts the Vetting
Process from the requirements at section IV.A, including that queries be reasonably likely toretrieve foreign intelligence information. See supra p. 44. That exemption presents the cental
issue in evaluating section IV.D under the statutory definition of "minimization procedures" as"specific procedures ... that are reasonably designed in light of the purpose and technique of theparticular surveillance, to minimize the acquisition and retention, and prohibit the dissemination,of' private U.S.-person information, "consistent with the need of the United States to obtain,
produce, and disseminate foreign intelligence information." § 180 l (h)( l ).
The FISC has held that the reasonableness of minimization procedures that permit
prolonged retention of unminimized Section 702 data "depends on querying rules and otheraccess restrictions that guard against the indiscriminate review and use of U.S.-person
information." October 18, 2018 Opinion at 63-64.38 Queries that are reasonably likely to retrieve

37

Section 702(f)(l )(B) does not set forth "an inflexible substantive requirement that[agency] personnel exhaustively investigate whether every query term used to query Section 702
information relates to a United States person." In re DNIIAG 702(h) Certifications, 941 F.3d at
558. Rather, "the ultimate decision regarding how best to comply with Section 702(f)(l )(B)" isleft to the Executive Branch, provided that there is "some kind of technical procedure that
requires agency personnel to memorialize, to the extent reasonably feasible, whether a query term
is a United States person query term." Id. at 557, 559.
38

See also Docket Nos. 702(i)-1 5-0 l, et al., Mem. Op. and Order at 24 (Nov. 6, 2015)("November 6, 2015 Opinion") at 24 (relying on "several important restrictions" of CIA and(continued ...)
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foreign intelligence information are responsive to foreign intelligence needs, which provides
justification for the resulting intrusions into private U.S.-person information. See October 18,
2018 Opinion at 81. Given the weight that prior decisions have placed on the "reasonably likely
to retrieve" standard, the Court will assess to what extent queries conducted in the Vetting
Process fall short of that standard.
The Court has concluded that generatingin the first step of the Vetting

Process does not involve queries, but that the second and third steps should be understood to
involve queries, as defined in NSA's procedures, and that those queries use as query terms theidentifiers for applicants. See supra pp. 48-51. Those queries do not satisfy the "reasonably
likely to retrieve" standard. Heretofore, that standard has been understood to require that, inorder to use a query term, an analyst must have particular information indicating that using theterm will return foreign intelligence information. See, e.g., April 2 1, 2022 Opinion at 27 (queries
using identifiers of arrestees to determine whether they were connected to international terrorism
violated standard because persons who conducted them did not know of "any specific potential
connections to terrorist related activity") (internal quotation marks omitted); id. at 31 (otherqueries regarding arrestees violated standard because personnel who conducted them "were not38( •.. continued)
NSA minimization procedures, " [m]ost notably" that all terms used to query the contents ofcommunications must be "reasonably likely to return foreign intelligence infonnation") (internal
quotation marks omitted); Docket Nos. 702(i)-20-0 I, et al., Mem. Op. and Order (Nov. 18, 2020)
at 16-17 (relying on the "reasonably likely to retrieve" standard in approving NSA' s querying
procedures).

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aware of any potential connections between the query subjects and terrorist or other national
security threats").
The government has argued that the retrieval of raw Section 702 information in the third
step comports with the "reasonably likely to retrieve" standard because a match between an
applicant's identifier andomeone associated with international
Gov't Resp. May 26, 2022 at 28. It

also justify a query. Id. at 25-26. Finally, the government cites guidance that NSD recently gaveto the FBI that "contact with a suspected international terrorist or intelligence operative likely
satisfies the querying standard, absent particular reason to believe that the contact is innocent."

Id. at 29.
These arguments all rely on a match between an applicant's identifier an
to justify retrieval and examination of the underlying Section 702 information. But
sufficient justification for undertaking a query must exist when the query is undertaken. Because
the automated comparison of the applicant's identifier with

onstitutes

a query, the justification for performing the automated comparison must exist when it isperformed. Just as a police officer cannot use the results of a search to establish probable cause,
NSA cannot use positive query results to justify a query.

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Authorized for Public Release by ODNIIOP SECREl))Sf))f ◄ OFOMUFISAThis point is illustrated by a case of noncompliance reported by the government iin which the FBI conducted queries using non-U.S. person identifiers in connection with
SD found these queries to violate the ''reasonably likely to retrieve" standard
based on the absence of reasonable suspicion at the time they were conducted. Notice ofcompliance incident regarding the improper querying of raw FISA-acquired information by the

NSD reached that conclusion, notwithstanding that FBI employed a

FBia

entifiers against non-content

two-step process in which it first ran queries oinformation, after which it conducted queries of raw FISA content information for the small
percentage of identifiers for which non-content queries yielded a match. Id. at 3. Because theFBI had no indication pre-query that any applicant presented a national security threat, NSD
concluded that the FBI lacked a reasonable basis to believe that using these identifiers as query
terms was likely to return foreign intelligence info1mation or evidence of a crime. Id. at 4. NSD
rejected the FBI's contention that a positive return from querying non-content information
provided a sufficient justification for querying content information. Id. at 3-4. Accordingly, theCourt views the second and third steps of the Vetting Process as involving suspicionless queries
that use identifiers for non-U.S. person applicants as query terms.
The FISC has not previously approved Section 702 procedures that permit suspicionlessqueries for intelligence or other investigative purposes. The government argues that section IV .D
comports with statutory minimization requirements because cross-checking an applicant's
identifiers

is a logical step in assessing whether the applicant is part ofan international terrorism network. See Gov't Resp. May 26, 2022 at 10, 25. The government

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further argues that, by using automation, the Vetting Process limits human review ofunminimized information to circumstances where an applicant isa counterterrorism-

Id. at 25; March 1, 2022 Memorandum at 20.
Amicus contends that the Vetting Process is likely to result in the retrieval and retentionof substantial quantities of communications of or concerning U.S. persons without a reasonable
likelihood of returning foreign intelligence information, and therefore does not comport with§ 1801(h)(l). Amici Br. May 9, 2022 at J 7-21; Amici Reply Jun. 6 at 11. As a less intrusivealternative, Amicus suggests omitting
2022 at 31-32. The overnment co

The Court assesses
is compatible with the statute's minimization requirements. Section 180 I(h)( I)
does not rigidly require that Section 702-acquired data be reasonably likely to constitute foreign
intelligence information in order to be searched for and copied from one NSA system to another.
Despite Amicus's emphasis on the volume of U.S.-person identifiers extracted, the Comt does
not view generation ofs significantly intruding on U.S. persons' privacy.

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Contrary to Amicus's suggestion, the Court does not view

enhances analysts' ability to conduct queries to identify applicants who are
and to retrieve related Section 702-acquired communications. See
NSA Deel. Aug. 23, 2022 at 48-49

in and of itself, significantly intrude on the privacy of U.S.-person communicants.
n the third step is more likely to implicate U.S. persons' privacy.interests in their communications. NSA analysts may review U.S.-person communications when

Given the apparent scope of the Vetting Process, the Court expects
such communications to be reviewed at least occasionally. Such reviews result in a "substantial"
intrusion on the privacy of the U.S. persons who are parties to reviewed communications. See
October I 8, 20 I 8 Opinion at 90. But the government has provided reason to think that, in thisspecific context, some applicants' identifiers that cannot be determined ex ante to be reasonably
likely to retrieve foreign intelligence information will tum out to do so when

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hat circumstance, in tum, provides reason to regard the Vetting Process as
consistent with the need to obtain, produce, and disseminate foreign intelligence information
concerning non-U.S. person applicants and ties they may have to international terrorism. Thus,
generatingnd using it for travel vetting are congruent with the foreign

intelligence purpose that justified the terrorism-related taskings that acquired the information atissue. See§ 1801(e)(l)(B), (h)(l).
On the other side of the balance, the government has a heightened need for prompt
identification and production of foreign intelligence information regarding connections that nonU.S. persons who are seeking to enter the United States or obtain a U.S. immigration benefit may
have to international terrorism. It therefore is particularly significant that the relaxed rules forqueries in the Vetting Process are likely to result in the timely identification of foreign
intelligence information regarding such applicants that might otherwise have been overlooked.
e retained for up to

after which they must be

ee supra p.
45; Gov't Resp. May 26, 2022 at 18-19. -retention is permitted "to enable recovery ifdata corruption or some other issue renders the operational version unavailable or unusable." Id.
at 18. Otherwise, information returned by the Vetting Process is "subject to the same retention
requirements as other section 702-acquired data," id. at 18-1 9, which the Court has previously
approved. See April 21, 2022 Opinion at 20-21, 58.
Also relevant to evaluating the procedures under § 180 I (h) are the limitations on
disseminating U.S .-person information returned by the Vetting Process. Such disseminations

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must be approved by one of several specified senior NSA officials upon a written determinationthat the information is "reasonably believed to contain significant foreign intelligence
information;" "reasonably believed to contain evidence of a crime that has been, is being, or isabout to be committed;" "necessary to understand or assess a communications security
vulnerability of a United States Government or National Security system;" or pertinent "to an
imminent threat of serious harm to life or property." NSA Minimization Procedures§ 8(10) at
15. This approval requirement enhances protection against improper dissemination of such U.S.person information.
Accordingly, the new provisions regarding the Vetting Process do not preclude a findingthat NSA's querying and minimization procedures are reasonably designed, in light of the
purpose and technique of the pertinent Section 702 acquisitions, to minimize the retention andprohibit the dissemination of private U.S.-person information, consistent with the need of theUnited States to obtain, produce, and disseminate foreign intelligence information, and otherwise
are consistent with the definition of "minimization procedures" at § 1801 (h).
4.

Other Use

The Court directed the government to provide further information and a legal assessment
regarding NSA's use

explained below, the Court finds that these uses do not detract from a finding that NSA's

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minimization and querying procedures, as likely to be implemented, satisfy applicable statutory
requirements.

efficiency reasons que

Importantly, such querie
querying requirements. "NSA personnel may que
nly if such query satisfies the ("reasonably likely to retrieve foreign
intelligence information"] standard in Section IV .A of the NSA Querying Procedures." Id. at 7,
13. Before conducting such a query, NSA personnel must have additional facts "beyond simply
the nature of the Dataset queried" that make it "reasonable to believe that foreign intelligence
information is likely to be returned." Id. at 14-15. In addition, access controls must ensure that

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T8P 0UOMT#0l;'.;f J81i8NVFU3A

queries are conducted only by authorized users with proper training, and queries will not run
against Section 702 informatio

nless users affirmatively opt for them todo so. See id. at 8, 12. Use of a U.S.-person query tenn to query Section 702-acquired content
information requires prior approval by NSA's Office of General Counsel (OGC) and records are
kept of such query terms. Id. at 16; NSA Querying Procedures§ IV.A-B. 39 In view of theseo not call into question whether NSA's

requirements, direct queries

procedures meet applicable statutory requirements. Moreover, information reported by thegovernment about recent queries

oes not give rise to concern about

implementation.40

39

OGC may approve use of a U.S.-person query term for up to one year and renew priorapprovals for up to one year. § IV.A. The Court understands that NSA may, on a frequently
recurring basis, run repeated queries using large numbers of query terms as new data is acquired
under Section 702 and

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Finally, NSA analysts may use a separate tool to query
including unminimized Section 702 information contained therein. Id. at 10. In order to do so,ataset to query and must specify that [the query] will

an analyst must "identify

include section 702-acquired information." Id. Such queries must be reasonably likely to

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retrieve foreign intelligence information and may only be conducted by authorized users who
have received the proper training. Id NSA OGC must approve U.S.-person query terms used in(i)Querying Requirements

Consistent with arguments advanced regarding the Vetting Process, see supra p. 49,
Amicus contends that, under Section 702(f)(3)(B)'s definition of "query,ueriesagainst the entirety of raw Section 702 information when it searches for communications related

See Amicus Resp. Jan. 24,
2023 at 5-8. The government likewise continues to argue that those actions do not constitutequeries because they do not remove information from electronic storage or return it for humaninspection. See Gov't Reply Feb. 7, 2023 at 5-6.

42

The government previously reported an investigation of possible failures by NSA tocomply with recordkeeping and approval requirements for U.S.-person query terms used in suchqueries; however, the government has concluded that the investigated practices were compliant.
See Update to the Notice of
· ·
·
·
·

. . .' .

' '"

I

I

I •

I

'

.

I

I .

•

. .I.

I

• • • •• • •• d or manufacturer's• •name . .. or related nomenclature .. . or the use of a name in a descriptive sense[.]'" Id. at 3(quoting NSA Querying Procedures§ III.A).
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The above-described operation

ueryable datasets are"processing" as defined in NSA's procedures, and therefore do not involve queries as defined inthose procedures. See NSA Querying Procedures § III.A. They are machine-initiated actions
designed to identify and organize raw Section 702 information. These actions do not present
information for human inspection, nor do they affirmatively use information for investigative,
intelligence-analysis, or preventative purposes - they do not, for example, make decisions or
recommendations regarding whom to target for foreign intell igence collection or identify in alead for another agency. Moreover, the Court has concluded that actions that constitute"processing" as defined in NSA's procedures are not encompassed by the definition of "query" atSection 702(f)(3)(B). See supra p. 40. Therefore, the Court does not regar
ueryable datasets as themselves involving queries under the statutory
definition. They therefore do not implicate Section 702(f)(l)(B)'s recordkeeping requirement.
NSA analysts may query the datasets

der generally-applicable

querying requirements, which the Court understands to include the recordkeeping requirementsfor U.S.-person query terms at NSA Querying Procedures§ IV.B.1. See supra pp. 62-63; Gov't
Submission Jan. 10, 2023 at 11

are maintained ... in the form ofstandard section 702 query audit records."). Section 702(t)(l )(B) is thereby satisfied with regard
to that type of query.
Minimization Requirements
foul of FISA' s minimization requirements becaus

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t uses terms that are not reasonably likely to retrieve foreign intelligence
information to scan, and extracts information from, raw Section 702 information. See Amicus
Resp. Jan. 24, 2023 at 5-8. But the language of§ 180l(h) does not mandate that every use ofterms to find and extract infonnation within raw Section 702 data be reasonably likely to return
foreign intelligence information. See supra p. 56.
Moreover, it is consistent with§ 180 I(h)(l) for procedures to permit automated actions tofind and extract certain types of information, without significantly intruding on U.S. persons 'privacy, in order to facilitate production of foreign intelligence information
nable more focused queries fits that description. See NSA Deel. Aug. 23, 2022 at
30-31 . "For example, a query searching for th
is much narrower" than a query

across all raw Section 702 informationand that "narrower query is only possible once NSA identifies, extracts, and indexes that
infonnation." Id. at 31. It stands to reason that an analyst
ay gain efficiency and clarity by queryin
unstructured mass of data. And the government persuasively contends that querying thesenarrower datasets "reduc[es] the likelihood that U.S. person information is unnecessarily orindiscriminately reviewed" by analysts. Gov't Reply Feb. 7, 2023 at 14- 15.
In comparison to these privacy and foreign-intelligence benefits of using the datasets
he intrusion on U.S. persons' privacy resulting fromthem seems slight. In the Court's estimation, the automated actions that produce those datasets

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do not significantly intrude on such privacy interests for reasons similar to those stated regarding
generation of

See supra pp. 56-57.

Amicus further contends that queries

ay present "greaterrisk of exposure and use" of U.S. -person information than the Vetting Process does. Amicus
Resp. Jan. 24, 2023 at 7. That appears to be correct. In the Vetting Process, the query terms used
are, at least by and large, identifiers for non-U.S. person applicants. Generally speaking, analysts
review Section 702-acquired communications involving U.S. persons only whensupra p. 57. In contrast, analysts may use U.S.-person identifiers to query
datasets, subject to generally-applicable querying rules. 43
There is, however, another significant difference between the travel-vettin
contexts. Section IV.D ofNSA's querying procedures exempts travel-vetting queries from the"reasonably likely to retrieve" standard and permits NSA to conduct what are, in effect,using travel applicants' identifiers. See supra pp. 53-

suspicionless queries o
55. Querie

atasets, however, are authorized only if they are determined ex

ante to be reasonably likely to retrieve foreign intelligence information. When that standard is

43

Based on the information provide
information is likely to be in such datasets.

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met, the examination of U.S.-person information returned by such queries is justified by the"need of the United States to obtain, produce, and disseminate foreign intelligence information."§ 1801(h)(l).

D.

Conclusion

For the foregoing reasons and those stated in the Court's opinions in the Prior 702
Dockets, the Court concludes that, as written, the minimization procedures for the FBI, NSA,
CIA, and NCTC, in conjunction with the querying procedures for those agencies, satisfy thedefinition of minimization procedures at 50 U.S.C. § 1801(h) and that those querying procedures,as written, satisfy the requirements of Section 702(f)(l ).

V.

FOURTH AMENDMENT REQUIREMENTS
The Court must also determine whether the targeting, minimization, and querying

procedures are consistent with the requirements of the Fourth Amendment. See§ 702G)(3)(A)-(B). That Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the persons or things to be
seized.
"The touchstone of the Fourth Amendment is reasonableness." In re Certified Question of Law,
858 F.3d 591,604 (FISCR 2016) (per curiam) ("In re Certified Question"). Although "[t]hewarrant requirement is generally a tolerable proxy for 'reasonableness' when the government isseeking to unearth evidence of criminal wrongdoing, ... it fails properly to balance the interests
at stake when the government is instead seeking to preserve and protect the nation's security

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from foreign threat." Id. at 593. A warrant is therefore not required to conduct surveillance "toobtain foreign intelligence for national security purposes . .. directed against foreign powers or
agents of foreign powers reasonably believed to be located outside the United States." In re

Directives Pursuant to Section 105B of PISA, 551 F.3d 1004, 1012 (FISCR 2008) ("In re
Directives").
The FISC has repeatedly reached the same conclusion regarding Section 702 acquisitions.

See, e.g., November 6, 20 15 Opinion at 36-37; September 4, 2008 Opinion at 34-36. All three
United States Circuit Courts of Appeals to consider the issue have held that the incidental
collection of a U.S. person's communications under Section 702 does not require a warrant andis reasonable under the Fourth Amendment. See United States v. Muhtorov, 20 F.4th 558, 594606 (10th Cir. 2021), cert. denied, 143 S. Ct. 246 (2022); United States v. Hasbajrami, 945 F.3d
641, 661 -68 (2d Cir. 2019); United States v. Mohamud, 843 F.3d 420, 438-44 (9th Cir. 2016).
In prior proceedings under Section 702(j), the FISC has assessed the reasonableness ofSection 702 procedures as a whole, consistent with its charge under the statute to determine
whether "the targeting, minimization, and querying procedures" are "consistent with ... thefourth amendment." § 702G)(3)(A)-(B).44 Under the applicable totality-of-circumstances
approach, the Court must balance "'the degree to which (governmental action] intrudes upon an
individual's privacy'" against "'the degree to which it is needed for the promotion of legitimate

44

See, e.g., December 6, 2019 Opinion at 60 (concluding that "in combination, theproposed targeting, minimization, and querying procedures will adequately guard against error
and abuse, taking into account the individual and governmental interests at stake"); November 6,2015 Opinion at 39 (assessing "combined effect" of targeting and minimization procedures).

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governmental interests."' In re Certified Question, 858 F.3d at 604-05 (quoting Wyoming v.
Houghton, 526 U.S. 295, 300 (1999)). "The more important the government's interest, thegreater the intrusion that may be constitutionally tolerated." In re Directives, 55 l F.3d at l O12.
Acquiring "foreign intelligence with an eye toward safeguarding the nation's security
serves ... a particularly intense interest." In re Certified Question, 858 F.3d at 606 (internal
quotation marks omitted). For that reason, "the government's investigative interest in cases
arising under FISA is at the highest level and weighs heavily in the constitutional balancing
process." id. at 608. The targeting procedures help ensure that Section 702 taskings are focusedon acquiring authorized forms of foreign intelligence information. See NSA Targeting
Procedures § I at 4 (before tasking, NSA must make a "particularized and fact-based" assessmentthat the proposed "target is expected to possess, receive, and/or is likely to communicate foreign
intelligence information concerning a foreign power or foreign territory authorized fortargeting").
On the other side of the balance, the foreign focus of Section 702 targeting limits to somedegree the intrusion on Fourth Amendment-protected interests. The Court has found that thetargeting procedures, as written, are reasonably designed to limit acquisitions to targeting persons
reasonably believed to be non-United States persons located outside the United States. See supra
pp. 20-21. Such persons are not within the ambit of Fourth Amendment protection. See, e.g.,
November 6, 2015 Opinion at 38; September 4, 2008 Opinion at 37 (citing United States v.
Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990)).

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1

Nevertheless, the extent to which Section 702 acquisitions involve U.S. persons should
be understood to be substantial in the aggregate, given the overall scope of Section 702
acquisitions. "NSA has reported that, on average,ndividual facilities

were tasked at a given time" during June-November 2022. Semiannual Report of the AG
Concerning Acquisitions under Section 702 of FISA at I (filed Mar. 9, 2023). Presumably, someof the taskings acquire information protected by the Fourth Amendment, e.g., by intercepting acommunication between a U.S. person and a Section 702 target.
The government can reduce the intrusiveness of those acquisitions under the Fourth
Amendment by restricting use and disclosure of the U.S.-person information acquired. 45 Here,the Court has found that each agency's minimization and querying procedures "are reasonably
designed ... to minimize the acquisition and retention, and prohibit the dissemination" of private
U.S.-person information, "consistent with the need of the United States to obtain, produce, anddisseminate foreign intelligence information" and require that private information "which is notforeign intelligence information, as defined in[§ 1801(e)(l)], shall not be disseminated in amanner that identifies any United States person, without such person's consent, unless such
person's identity is necessary to understand foreign intelligence information or assess its

45

See Marylandv. King 569 U.S. 435,465 (2013) (acquiring DNA sample incident toarrest was less intrusive because use was limited to identification purposes); Bd ofEduc. ofIndep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 832-34 (2002) (drug testing program was lessintrusive because results were subject to limited access and use); Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646,658 (1995) (drug testing program found less intrusive due to limitations on
use and dissemination of results); In re Certified Question, 858 F.3d at 608-10 (prohibition on
use of content information acquired under pen register/trap-and-trace order was among factorsthat made such acquisition reasonable).
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importance," in satisfaction of § 1801 (h)(l )-(2). See supra p. 67. Such protections can weighconsiderably - even decisively - in assessing reasonableness.

If the protections that are in place for individual privacy interests are sufficient inlight of the governmental interest at stake, the constitutional scales will tilt infavor of upholding the government's actions. If, however, those protections are
insufficient to a1leviate the risks of government error and abuse, the scales will tip
toward a finding of unconstitutionality.

In re Directives, 551 F.3d at 1012.
Protections relating to use of U.S.-person query tenns are particularly significant in the
FISC's Fourth Amendment review. "When the government queries Section 702 data to identify
and examine information about a particular U.S. person, ... it typically has an investigative or
analytical interest regarding that person, who necessarily was not a target" of Section 702
acquisition. October 18, 2018 Opinion at 65. Such queries can also result in a further, postacquisition "intrusion into the privacy of such U.S. persons, who may have enjoyed theprotection of anonymity until information concerning them was retrieved" by a query. Id. at 6566 (internal quotation marks omitted). Additional Fourth Amendment concerns can arise when
the FBI uses U.S.-person query terms to identify evidence of crimes that are unrelated to national
security threats. The exception to the warrant requirement for surveillance "conducted to obtainforeign intelligence for national security purposes and ... directed against foreign powers or
agents of foreign powers reasonably believed to be located outside the United States" "might not
apply in everyday criminal investigations unrelated to national security and foreign intelligenceneeds." In re DNIIAG 702(h) Certifications, 941 F.3d at 559 (footnote and internal quotation
marks omitted).

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I er 31!!Cltf!!fjj 31SJHePettUPPl3A

In 2015, and again in 2018 after the enactment of Section 702(f), see FISA Amendments
Reauthorization Act of 2017 ("Reauthorization Act") § 101, Pub. L. No. 115-118, 132 Stat. 3(2018), the FISC entertained amici arguments that queries should be regarded as distinct Fourth
Amendment searches. See October 18, 2018 Opinion at 85-88; November 6, 2015 Opinion at
40-41. In each instance, the Court declined to do so. The Court concluded in 2018 that, although
the querying requirements introduced by the Reauthorization Act "reflect congressional views on
the reasonableness of certain querying practices and strongly suggest congressional recognition
that Fourth Amendment concerns are implicated" by Section 702 queries, they "expand statutory
protections, not the scope of what constitutes an independent search under the Fourth
Amendment." October 18, 2018 Opinion at 87. The Court was also unpersuaded that cases citedby the amici established that "queries of Section 702 information [must] be considered distinct
Fourth Amendment events." Id.4fi The Court found that these precedents were not "instructive"
regarding "the government's examination of information lawfully acquired under a statutory
framework that requires a judicial determination that the totality of attendant circumstances,including the government's acquisition, retention, use, and dissemination of such information, is

46

Some of those cases "involved property voluntarily provided to law enforcement by athird party and subsequent law-enforcement searches that exceeded the scope of the priorexamination by that third party." Id. at 87-88 (distinguishing Walter v. United States, 447 U.S.
649 (1980), United States v. Runyan, 275 F.3d 449 (5th Cir. 2001), and United States v.
Bowman, 215 F.3d 951 (9th Cir. 2001)). Amici also relied on Riley v. California, 573 U.S. 373(2014) (warrant required to search cell phone lawfully seized as incident to an arrest), Carpenterv. United States, 138 S. Ct. 2206 (2018) (acquisition from a third party of cell-site records
revelatory of a person's location constituted a Fourth Amendment search), and United States v.
Mulder, 808 F.2d 1346 (9th Cir. 1987) (lab tests of tablets received by law enforcement from ahotel employee exceeded scope of the "field test" exception to the warrant requirement).

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reasonable under the Fourth Amendment." October 18, 2018 Opinion at 87-88. The Court in2018 applied the totality-of-circumstances approach discussed above and found that the FBI' squerying and minimization procedures were inconsistent with Fourth Amendment requirements
because the FBI would likely conduct broad, suspicionless queries. See id. at 88-92.
In 2019, the Second Circuit held that querying Section 702 information, at least when
designed to retrieve information about particular U.S. persons, should be regarded as "a separate
Fourth Amendment event that, in itself, must be reasonable," in order to provide "a backstop toprotect the privacy interests of United States persons and ensure that they are not being
improperly targeted" by unjustified queries. Hasbajrami, 945 F.3d at 670,672.47 In so doing,
the Second Circuit relied on a number of the cases considered by the FISC in 2018. See id. at
670-72 (discussing Riley, Runyan, Mulder, and Carpenter).
Most recently in April 2022, this Court examined the FISC's October 18, 2018 Opinion
and the Second Circuit's decision in Hasbajrami and concluded that it would "respectfully
adhere[] to the view that [Fourth Amendment) objectives are properly served, at least in thecontext of the FISC's review of procedures under§ 702G)(3)(A)-(B), by examining thereasonableness of such procedures as a whole." April 21, 2022 Opinion at 66. For the reasons
then stated, see id. at 62-66, the Court employs the same methodology in this case.

47

The district court in the Mohamud case, calling it a "very close question," reached thecontrary conclusion. See United States v. Mohamud, No. 3: 10-cr-475-K.I-l, 2014 WL 2866749
at *26 (D. Or. June 24, 2014), aff'd, 843 F.3d 420 (9th Cir. 2016). The Ninth Circuit did notreach that issue on appeal.

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After carefully considering how in combination the targeting, minimization, and querying
procedures protect private U.S.-person information, the Court finds that the procedures as written
adequately guard against error and abuse, taking into account the individual and governmental
interests at stake. The Court accordingly finds that the procedures, as written, are consistent withthe requirements of the Fourth Amendment.
Given the importance of querying practices under Section 702, particular discussion ofcertain amendments to the NSA's querying and minimization procedures is in order. It provides
helpful context to review why in 2018 the FISC found FBI queries to be problematic under the
Fourth Amendment. The FBI had "conducted tens of thousands of unjustified queries" and it
appeared that many subjects of those queries were U.S. persons. October 18, 2018 Opinion at
88-89.48 Although it was difficult "to assess to what extent U.S.-person information was returnedand examined," the Court found "the privacy interests at stake [to be] substantial." Id. at 88-89.
"At a minimum," the FBI's querying practices presented "a serious risk of unwarranted intrusion
into the private communications of a large number of U.S. persons." Id. at 89. The severity ofthat intrusion was partially mitigated by generally-applicable minimization rules that "limit( ] thefurther use or disclosure of U.S. person information returned by queries;" nonetheless, the Court"view[ed] as substantial the intrusion on U.S. persons' privacy inherent in FBI personnel's
examination of information - especially content information - returned by unjustified U.S.-

48

These queries did not comply with the requirement that FBI queries be reasonably
likely to return foreign intelligence information or evidence of crime. See id. at 66-67.
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person queries." Id. at 90. Although it was "a close question," the Court found that the FBI's
procedures were "not consistent with the requirements of the Fourth Amendment." Id. at 91-92.
The revised definitions of "processing" and "query" in NSA's procedures, see supra pp.
29-43, do not implicate the Fourth Amendment concerns that those FBI queries presented.
Although they exclude certain automated actions from the definition of"query," they do not alter
the requirement that, when NSA analysts use queries to return infonnation for them to review,
they must use tenns that are reasonably likely to retrieve foreign intelligence infonnation (unlessthe query is conducted for an approved purpose other than investigation or intelligence analysis).

See NSA Querying Procedures§§ III.A.1, at 2-3; IV .A; IV.C. Although human examination of
the private communications of persons protected by the Fourth Amendment involves asubstantial intrusion, such examination is reasonable when the communications were properly
acquired under Section 702 and returned by a query satisfying the "reasonably likely to retrieve"
standard. Cf October l 8, 20 l 8 Opinion at 67- 68 ("[q]ueries that are reasonably likely to return
foreign-intelligence information, are conducted for that purpose, and avoid overbreadth should

contribute to t~e minimization of private U.S.-person information, consistent with foreignintelligence needs") (emphasis added).
In contrast, actions that NSA's procedures regard as processing, and therefore not as
queries subject to the "reasonably likely to retrieve" standard, do not result in human inspection
or affirmative use of information for investigative, intelligence-analysis or preventative purposes.

See supra p. 29. Such processing actions do not intrude on interests protected by the Fourth
Amendment nearly to the same degree as human review of private communications. Moreover,

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processing actions that prepare Section 702 information for analysis (e.g., by identifying
encrypted material and attempting to make it intelligible) promote the government's "particularly
intense interest" in acquiring foreign intelligence. See In re Certified Question, 858 F.3d at 606.
Some forms of processing may also limit the overall intrusion on Fourth Amendment-protectedprivacy. For example, the processing actions by which-produces focused datasets allow

for more efficient queries that should reduce the extent to which analysts review U.S.-person
communications that do not relate to the·n which they areinterested. See supra p. 65.
The Vetting Process provided for in section IV .D of the NSA Querying Procedures
presents different issues under the Fourth Amendment. In the first step of the Vetting Process,automated means are used to "curate[ ] information . ..

against which NSA compares identifiers to find relevant information. NSA Deel. Mar. 13, 2023
at 4-6, 8-9. Generating·s essentially a form of processing under the revised

definition, and does not in and of itself significantly intrude on Fourth Amendment-protectedinterests. On the other hand, the second and third steps of
suspicionless queries that result

ffectively involved review of communications

identified by such queries by NSA personnel. See supra pp. 45-47, 53-55. These steps in the
Vetting Process present more substantial Fourth Amendment issues.
Although the "reasonably likely to retrieve" standard has been important in the FISC'sreview of Section 702 procedures, individualized suspicion is not an "irreducible" component of

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reasonableness under the Fourth Amendment. United States v. Martines-Fuerte, 428 U.S. 543,
560-61 (1976). For searches that are responsive to special needs, the reasonableness inquiry
focuses on whether the search program in question supports an important governmental interest
beyond ordinary crime control. See, e.g., In re Directives, 55 1 F.3d at 1011 (applying reasoningof special needs cases by analogy to justify a foreign intelligence exception to the warrant
requirement for surveillance conducted for national security purposes); see also In re Sealed
Case, 310 F.3d 717, 745-46 (FISCR 2002) (per curiam) (the programmatic purpose of FISA

surveillance is distinguishable from "ordinary crime control"). The prevention of terrorist attacks
is clearly a special need beyond ordinary law enforcement. See Cassidy v. Chertoff, 471 F.3d 67(2d Cir. 2006) (preventing terrorist attacks on mass transportation vessels determined to be atheightened risk); MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006) (preventing terrorist bombingof subways).
In evaluating whether a suspicionless search is reasonable under the special needs
doctrine, a court conducts a context-specific balancing of the privacy interests affected against
the government interest furthered by the intrusion. Three factors are examined: (1) the nature of
the privacy interests involved; (2) the character and degree of the intrusion by the government;and (3) the nature and immediacy of the government's interest and the efficacy of thesuspicionless searches in advancing that interest. See Earls, 536 U.S . at 830-34.
Privacy interests protected by the Fourth Amendment are substantially implicated in thecommunications of

Vetting Process when NSA analysts are alerted

persons protected by the Fourth Amendment. As previously noted, the Court regards that privacy

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interest as substantial. But the degree of intrusion into that interest cannot be precisely
quantified. The travel applicants whose identifiers are used as query terms will rarely beprotected by the Fourth Amendment, as section IV.D authorizes queries only for non-U.S . person
applicants who are not known to be located or reside in the United States. NSA takes steps tolimit its queries accordingly, though apparently they have not always been effective. See supracommunications reviewed in the Vetting Process would not involve these circumstances.
Nonetheless, given the scope of the Vetting Process, it appears reasonable to expect that
communications subject to Fourth Amendment protection will be reviewed on occasion.
Restrictions on post-acquisition access and use of information may reduce theintrusiveness of government action. In this case, U.S.-person information returned during theVetting Process is subject to special rules under which dissemination is permitted only if a senior
NSA official finds that the specific information to be disseminated meets heightened criteria.

See supra pages 58-59. The Court expects it would rarely be necessary to disseminate U.S. person information to another agency in order to dispose of a travel or immigration application.
There may, however, be cases in which such information could be disseminated for other

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legitimate purposes. For example, if a reviewed communication indicated that an applicant and a
U.S. person were raising funds for an international terrorist group, information about the nonU.S. person applicant might be disseminated to DOS for vetting purposes and information about
the U.S. person might be disseminated to the FBI for counterterrorism purposes that are
independent of vetting the applicant. By providing further assurance against improper
dissemination of U.S.-person information, this requirement diminishes to some extent the
Vetting Process's intrusion on Fourth Amendment-protected interests.
Finally, the Court must consider the nature and immediacy of the government's
objectives and the efficacy of the Vetting Process in meeting them. See Earls, 536 U.S. at 834.
NSA developed the Vetting Process in response to Presidential direction to leverage national
security information to help DHS and DOS ensure that foreign nationals who have applied fortravel or immigration to the United States do not pose national-security threats. The "prevention
or apprehension of terrorism suspects" is "inextricably intertwined with the national security
concerns that are at the core of foreign intelligence collection." In re Directives, 55 I F.3d at

IO11. There is little dispute, therefore, that the need served by the Vetting Process - to identify
applicants with connections to terrorism - is compelling. In the context of pending applications
for entry into the United States or other immigration benefits, the Court accepts that this need isalso immediate.

In evaluating the efficacy of the Vetting Process in meeting that need, the Court is
mindful that this inquiry does not "transfer from politically accountable officials to the courts thedecision as to which among reasonable alternative ... techniques should be employed." Cassidy,

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471 F.3d at 85. That choice "remains with the governmental officials who have a uniqueunderstanding of, and responsibility for, limited public resources." Michigan Dept. ofState

Police v Sitz, 496 U.S . 444, 454-55 ( 1990). The Court' s role is limited to dete1mining whether
the Vetting Process, "at the level of its design," is a reasonably effective means for detecting
applicants with connections to international terrorism. See Mac Wade, 460 F.3d at 273-74. The
Vetting Process may be expected to result in timely identification of foreign intelligence
information regarding applicants' connections to terrorism that might otherwise have been
overlooked. NSA describe

contents of Section 702-acquired

communications as particularly valuable t
sometimes the only source of pertinent information

SA Deel.

March 13, 2023 at 8. In some cases, information "critical" to determining whether an applicant
is suitable for entry may be found only in the contents of Section 702-acquired communications.

Id And the government has provided anecdotal evidence thatan result in identifying an applicant's connections to terrorism. See supra p. 56.
Amicus criticizes as lacking in specifics the government's case for the efficacy of what
Amicus sees as the more intrusive aspects of the Vetting Process, such as examining the contents
not ·ust metadata) of Section 702 communications to find

See Amici Reply Jun. 6, 2022 at 15. But, under the special needs
doctrine, the benefits "need not be reduced to a quotient before a court may recognize a search
program as effective.'' Mac Wade, 460 F.3d at 274; see also Earls, 536 U.S. at 837("reasonableness under the Fourth Amendment does not require employing the least intrusive

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means"). Rather, the question is whether the Vetting Process is "a reasonably effective means ofaddressing" the government's interest in determining which applicants may present a terrorist
threat. Mac Wade, 460 F.3d at 273. The Vetting Process meets that standard.
Despite the use of suspicionless queries, the Vetting Process as authorized by NSA 'squerying and minimization procedures is a reasonably effective means of furthering a compelling
government interest that intrudes on Fourth Amendment-protected interests only to a limited
degree. The Court concludes that the Vetting Process under those procedures, and ultimately theprocedures themselves, are consistent with the requirements of the Fourth Amendment.
Issues regarding implementation of the other sets of procedures are addressed in Part VI
immediately below.
VI.

IMPLEMENTATION AND COMPLIANCE ISSUES

The government's implementation of the Section 702 procedures now in effect "can berelevant to determining whether proposed procedures comply with FISA's requirements," "to theextent that they serve as indicia of how proposed procedures will be implemented in the future."
In re DNIIAG 702(h) Certifications, 941 F.3d at 564.

A.

FBI Querying Practices

The prevalence of non-compliant queries conducted by the FBI, and particularly of broad
queries that were not reasonably likely to return foreign intelligence information or evidence ofcrime, has been a major focus of concern since they contributed to the FISC finding in 2018 that
the FBI's querying and minimization procedures were not consistent with statutory and Fourth
Amendment requirements. See October 18, 2018 Opinion at 62, 68-70.

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if 8P St1CM:ifNSION8P8ft<PiJIFtE.b't
1.

Remedial Efforts

The government has taken several steps to improve FBI querying practices, which
include:( 1) The government revised the FBI' s querying procedures to make explicit that "theperson conducting the query must have a specific factual basis to believe that it is reasonably
likely to retrieve foreign intelligence information or evidence of a crime;" that a statement ofsuch specific factual basis must be included in the written documentation FBI personnel must
prepare before "reviewing or accessing" raw Section 702 information "retrieved [by] using a
United States person query term;" and that queries "must be reasonably tailored to retrieve
foreign intelligence information or evidence of a crime without unnecessarily retrieving otherinformation." April 21, 2022 Opinion at 35-36 (internal quotation marks omitted). These
provisions appear at FBI Querying Procedures § IV .A. 1, 3.
(2) The FBI modified its systems to facilitate compliance with querying rules in various
ways. See April 21, 2022 Opinion at 36-41. Some modifications supported the requirement todocument the specific factual basis for a query under the circumstances discussed above. See id.
at 36-37.

a system used to query raw Section 702 information and other categories ofdata, was modified to require users to state that they have complied with an FBI policy that,
subject to emergency exceptions, "batch jobs" comprising I 00 or more queries require approvalby an FBI attorney. 49 The FBI also changed the defau1t settings ond another system

49

See Government's Submission in Response to Court's Order in Response to Querying
Violations at 10-11 (Nov. 3, 202 1).

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calledso that they do not query raw Section 702 information unless a user affirmatively

elects to do so. See April 21, 2022 Opinion at 37-38. 50 The Court anticipated that the newdefault settings "should eliminate non-compliance stemming from inadvertent querying" of suchinformation and noted "preliminary indications" that such changes were "resulting in substantial
reductions in the number of U.S.-person queries.'' Id. at 40.
(3) The FBI and NSD also enhanced training and oversight efforts for FBI queries ofSection 702 information. NSD, in consultation with ODNI, developed a guidance document,
which became the basis for mandatory querying training. See April 21, 2022 Opinion at 41-42.
The FBI also developed plans for annual follow-up training. See id. at 43. NSD resumed
oversight reviews of queries at FBI field offices after a pandemic-related suspension. Id.

2.

Implementation of Querying Standard

There are further indications that these measures are having the desired effect. NSD has
reported on querying reviews and training in the following FBI field divisions and headquarters
component since the April 2 1, 2022 Opinion:s stem this month and re lace it with a user interface
ository
See March 22, 2023
otice at 3. At firsri~
me u e raw ect10n
m ormation, so queries of sue m orrnation will be conducted i~and ~ h ich are the systems in which such information is stored. Id. at 4-6· Lettert 1-2 (Feb. 9, 2023). Bothd iiliilrequire users
Reg~ I Plans to Retireto affirmatively indicate that they want to query Section 702 information be~
ch a query is
run. March 22 2023~
otice at 5-6; April 21, 2002 Opinion at 36 n.12. The FBI intends toconfigur~~; that it also w~
ry raw Section 702 information only if a user affirmatively
elects to ~arch 22, 2023 Notice at 6. The FBI has also modified o su ort
the above-described approval requirement for large batch jobs and plans to configureodo so as well. Id. at 5.
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1 summarizes the results of these reviews regarding compliance with the querying standard. The
government recently filed reports of two more oversight reviews of FBI queries. See Query
Apr. 3, 2023); Query Notic(Apr. 5, 2023).

Information from these two reports is not included in this discussion; however, the Court hasreviewed them and determined that they do not alter its assessment of FBI querying practices.
The figures in Chart 1 include queries of any type of FISA information, not just Section
702 information, because the government reported the number of Section 702 queries reviewed
by NSD for only 14 of the offices listed in Chart 1. In those offices, NSD reviewed
approximately 29,131 Section 702 queries and found violations of the querying standard inapprox imately 501 of them, or about 1.7%.

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Chart I - FBI Query Errors
Date Range
8/2021-11/2021
8/2021-11/2021
8/2021-11/2021
8/2021-11/202 1
8/2021-1 1/202 l
8/2021- 11/202 1
8/2021-11/202 l
8/202 1-11/202 l
1/2022-3/2022
1/2022-3/2022
1/2022-3/2022
I/2022-3/2022
l /2022-3/2022
l/2022-3/2022
l/2022-3/2022
1/2022-3/2022
4/2022-6/2022
4/2022-6/2022
4/2022-6/2022
4/2022-6/2022
4/2022-6/2022
9/2022-11/2022
10/2022-1 /2023

Queries
Audited
7253
2636
914
3949
1926
2841
23566
2644
6178
1456
3046
4333
472
1415
5750
4926
677
1857
165
2963
316
49
342

Queries Not
Meetin Standard

3
1

2
2

79674
Several contexts repeatedly gave rise to non-compliant queries across field offices,
including support of domestic terrorism assessments, criminal investigations without a foreignnexus, investigations into the January 6, 202 1 breach of the U.S. Capitol, and vetting of sourcesand Afghan refugees. As previously, a number of overbroad queries were reported, as were non-I bi SECf&f ))Sf))f40FO@Ui,fSA

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compliant queries in which government-generated identifiers like FBI report numbers or National
Security Letter (NSL) numbers were used as query terms.
Some violations of the querying standard coincided with failure to follow an FBI policythat requires prior Deputy Director approval to use "sensitive query terms" - e.g., identifiers ofdomestic public officials, domestic political candidates, members of the news media, academics,
and religious organizations or persons prominent within them. See Letter Regarding FBI Policy
Concerning Sensitive Queries of Raw FISA-Acquired Information at 1 (Sept. 7, 2022)("September 7, 2022 Letter"); NSD Fact Sheet, Recent Efforts to Strengthen FISA Compliance at
3 (Feb. 28, 2023). NSD reviews such approvals after the fact. See September 7, 2022 Letter at 2.
The following queries did not meet the "reasonably likely to retrieve" standard and also
contravened this FBI policy:•

In June 2022, an analyst conducted four queries of Section 702 information using
the last names of a U.S. Senator and a state senator, without further limitation.
March 2023 QR at 88. The analyst had information that a specific foreign
intelligence service was targeting those legislators, but NSD determined that thequerying standard was not satisfied. Id.
On October 25, 2022, a Staff Operations Specialist ran a query using the Social
Security number of a state judge who "had complained to FBI about alleged civil·· lations perpetrated by a municipal chief of police." See Query Noticear. 29, 2023) at 4. 52

52

In addition, on May 9 and 10, 2022, an FBI Staff Operations Specialist ran four queries
concerning a U.S. academic without obtaining Deputy Director approva ·, these queries
Mar. 3, 2023)
were assessed to have satisfied the querying standard. See Query Noti
at 3.

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I bi SELKE I ))§l))f ◄ bF OMCFISAThis policy provides a potentially important safeguard and the Court encourages the FBI and
NSD to reinforce its requirements in training and oversight reviews. 53
Despite the reported errors, there is reason to believe that the FBI has been doing a betterjob in applying the querying standard. Large-scale, suspicionless queries of Section 702
information contributed in 2018 to a finding of deficiency in the FBI' s querying andminimization procedures 54 and remained a concern at the time of the last renewal in April 2022.55
Since then, the government has not reported violations of comparable magnitude. In some cases,
FBI personnel apparently misapplied the querying standard to a group of similarly situatedpersons, but those violations do not approach the scale of a number of prior ones. 56

53

As noted above, FBI policy also requires approval by an FBI attorney of"batchjobs"
that include 100 or more queries. The fourth column ~ below provides the number ofbatch queries reported by the government. The FBI's~
ffice conducted a batch job,
consi- 1
23 individual query terms, without the required attorney approval. See Query
NoticOct. 14, 2022) at 3. Nonetheless, NSD determined that these queries werereasona ly hkely to retrieve foreign intelligence information and otherwise complied with the
FBl' s querying procedures. Id.
54

See, e.g., October 18, 2018 Opinion at 68-69 ("queries using identifiers for over 70,000
communication faci lities 'associated with' persons with access to FBI facilities and systems" inMarch 2017)· ·· ·· g identifiers for persons who
had obtained
55

See, e.g., April 2022 Opinion at 29
ffice conducted three batch queriesconsistin of over 23 000 se arate queries using presumed U.S.-person query terms associatedwieportedly used by a group involved in the January 6 Capitol
ffice conducted batch query for over 19,000 donors to a congressional
breach); id.
campaign).
56

See, e.g., Query Notice

Jul 18, 2022) at 3 (86in support of a State Department
July 22, 2022) at 3-4 (71 queries relating to'JOP 013 (JJ.W'JhfQl1~, roFORP J1i[ilQ/t

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ersonsfro~
Query Notice; Query
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'fOP SECRE'f/fSlffNOFORNfFISA

Another positive indication is that two field offices that previously committed serious
violations of the querying standard fared better in recent reviews:

an-·

•

NSD reviewed 1,456 queries of FISA information conducted by the nly 11 violations of theoffice during January-March 2022
querying standard. See Query Noticeuly 22, 2022) at 2. "Between
late 2016 and early 2020," that office a regu ar y conducted noncompliant
queries using identifiers of witnesses, suspects, and other persons appearing in
local police reports of homicides. April 21, 2022 Opinion at 26-27. It also ran
noncompliant queries on 133 individuals arrested in connection with the civil
unrest occurrin in Ma -June 2020, and on hundreds of cleared defense
contractors andmployees in June 2020. Id at 27, 28 n.6.

•

NSD reviewed 4,333 queries of FISA information conducted by th
office during January-March 2022 and identified only 56 violations o t equerying standard. See Query Notic~ S e p t . 8, 2022) at 2-7. That officepreviously conducted a non-compliant batch query for over 19,000 donors to acongressional campaign. See supra note 55.

The information reported regarding the FBI's recent implementation of the querying
standard is encouraging, but it is not based on a complete picture. NSD devotes substantial
resources to its oversight efforts, but still can examine only a fraction of total FBI queries. It istherefore possible that serious violations of the querying standard have so far gone undetected.
On balance, however, FBI application of the querying standard appears to have improved.
3.

Records of Use ofU.S.-Person Query Terms

As reflected in Chart 2 below, the number of reported queries in which the FBI used U.S.person query terms continued to decline in 2022, and now appears to have leveled off in the56

Noticeinued)(Oct. 14, 2022) at 3 (213 queries relating to

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range of 40,000 to 50,000 per quarter. 57 Other things being equal, fewer U.S.-person queries
should indicate less intrusion into the private communications of U.S. persons. There are,however, concerns about the accuracy of FBI recordkeeping for use of U.S.-person query terms.
Section 702(f)(l)(b) requires that a record be kept of each U.S. -person term used for aquery. Accordingly, the FBI is required to maintain a "record of each United States person query
term used for a query of unminimized content or noncontent information acquired pursuant tosection 702" and to apply presumptions in its procedures regarding U.S.-person status in cases ofincomplete information, including one that someone in the United States is a U.S. person, absent
specific indication to the contrary. See FBI Querying Procedures§§ III.B, IV .B.
In April 2022, the Court took note of inaccuracies in FBI records regarding whether
queries had used U.S.-person query terms. See April 21, 2022 Opinion at47-49 (discussing
instances in which FBI analysts recorded hundreds or thousands of query terms pertaining to U.S.
persons as non-U.S. person or "other."). The government has continued to report errors of thisnature. In the above-described oversight reviews of FBI queries, NSD found recordkeeping
errors of this type in approximately 2,350 of 79,674 queries reviewed. The Court understands
that some of the queries reviewed did not run against Section 702 information and therefore were
not subject to this recordkeeping requirement, but cannot tell how many such queries there were
because NSD reported the number of Section 702 queries it reviewed for only 14 offices. In

57

NSD often revises downward the number of U.S.-person queries recorded by the FBI if
it determines that a query did not use a U.S.-person query term, contrary to how it was recordedby the person who conducted it. The figures in Chart 2 reflect any such revisions by NSD.

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Authorized for Public Release by ODNII 61 SECl&L:SLlitGI GIGtll Mhthose offices, NSD reviewed approximately 29,091 Section 702 queries and found errors of thistype for approximately 1,652 of them, or approximately 5.7%.
Notably, most of the errors of this type - approximately 65% - involved recording a term
as pertaining to a U.S. person when in fact it did not. The errors discussed in the April 2 1, 2022
Opinion went the other way, i.e., recording a U.S.-person query term as pertaining to a non-U.S.
person or as "other." Errors in either direction impede accurate recordkeeping and reporting andtherefore should be avoided. But mistakenly treating a U.S.-person query term as if it were in adifferent category can also lead to non-compliance with Section 702(f)(2) or the requirement at
section IV .A.3 of the FBI Querying Procedures to document the specific factual basis for a query.
Even with most of the reported errors falling in the less consequential category, the overall error
rate indicates that training and oversight efforts should emphasize how to determine and record
U.S.-person status correctly.

4.

Section 702(f)(2)Section 702(f)(2) requires the FBI to obtain approval from the FISC before accessing thecontents of communications acquired under Section 702 under the following narrowcircumstances: (1) such contents "were retrieved pursuant to a query made using a United States
person query term," (2) the query "was not designed to find and extract foreign intelligence
information," and (3) the query was conducted "in connection with a predicated criminal
investigation ... that does not relate to the national security of the United States," but ( 4) FISC
approval is not required if "there is a reasonable belief that such contents could assist in
mitigating or eliminating a threat to life or serious bodily harm." § 702(f)(2)(A), (E).

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The government has never submitted an application to the FISC under this provision, but
it has reported a number of violations of it. The April 2022 Opinion discussed five such
violations, which arose in the context of criminal investigations stemming from the January 6
Capitol breach. April 21, 2022 Opinion at 33-34. More recently, the government has reported asimilar violation. In March 2022, an FBI Special Agent ran a query of a U.S. person's name inresponse to a lead sent by another field office in connection with an open predicated criminal
investigation related to the Capitol breach. See Notice of compliance incidents relating to FBI
queries of raw FISA-acquired information, including information acquired pursuant to Section
702 of FISA, at 3 (Sept. 14, 2022). The query returned Section 702 information, which the agent
accessed under circumstances that NSD fo und to trigger Section 702(t)(2) 's requirement for a
FISC order. Id. NSD also concluded that the querying standard was violated because the agent
did not have a specific factual basis to believe that the query was reasonably likely to return
foreign intelligence information or evidence of a crime. id. The agent did not use theinformation for any analytical, investigative or evidentiary purpose. Id. The FBI stated that it
has taken steps to improve policy, training, and systems to avoid future violations of Section
702(t)(2). Id. at 3 n.4.
5.

Reportin g for Evidence-of-Crime-Only Queries

The FISC first imposed a reporting requirement regarding FBI queries conducted solely toreturn evidence of crime in November 2015. See November 6, 2015 Opinion at 78. On thatoccasion, the Court's approval of minimization procedures that permitted the FBJ to conduct
evidence-of-crime-only queries using U.S.-person query terms relied in part on the government's

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assessment that "FBI queries designed to elicit evidence of crimes unrelated to foreign
intelligence rarely, if ever, produce responsive results" from Section 702 infonnation. See id. at
44. The Court imposed the reporting requirement to confinn the continued accuracy of thatassessment. Id. at 78. The updated results of that reporting are summarized in Chart 2 below.
In the last five quarterly reports, the number of U.S.-person queries identified by the FBI
personnel who conducted them as solely for the purpose of returning evidence of crime has
generally decreased, as has the number of queries confirmed, after NSD review, to have met that
description. 58
6.

Summary of Reporting

Currently, the government must report on a quarterly basis
each instance in which FBI personnel accessed unminimized Section 702-acquired
contents information that the user identified as a Query ONLY for evidence ofcrime. Except for queries for which an application is filed w ith the Court
pursuant to Section 702(f)(2), the report shall include the FBI's basis forconcluding that the query was consistent with applicable procedures. This reportshall also include: (i) the number of U.S.-person queries run by the FBI against
Section 702-acquired information; (ii) the number of such queries identified by
the user~ence-of-crirne-only queries; (iii) the number of instances in whichusers o - t a t e d that they had received approval from an FBI attorney toperform a "batch job" that l 00 or more queries; and (iv) the number of
instances in which users of
id not receive prior approval from an FBI
attorney for such a "batch job" due to emergency circumstances.

58

As is the case with the number of U.S.-person queries, NSD often revises downward
the number of queries, as initially recorded by FBI personnel, that were conducted solely toretrieve evidence of crime. For example, of the 19 queries during June-August 2022 for which
the user reported an evidence-of-crime-only purpose, NSD concluded that 12 had a foreignintelligence nexus, three did not involve use of a U.S.-person query term, and three did not resultin accessing Section 702-acquired infonnation - leaving one query ultimately assessed to be
responsive to this reporting requirement. See December 2022 QR at 120.
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April 21, 2022 Opinion at 123-24. These reporting requirements are carried forward with minor
adjustments. See infra pp. 113-14. lnfonnation reported in response to them (see March 2023
QR at 95, 144; December 2022 QR at 94, 119-20; September 2022 QR at 115, 142-43; June
2022 QR at 101, 132-33; March 2022 QR at 106, 137-41; December 2021 QR at 116; September
2021 QR at 102; June 2021 QR at 87) is summarized in the following chart. (The government
was not required to report on approved batch jobs for some of the time reflected on the chart.)

Chart 2 - FBI Query Reporting
Reporting
PeriodUSPER andPresumed
USPER
Queries

USPER
Queries for
EOC
Purposes
Only (user-

USPER Queries
for EOC Purposes
Only (adjusted per
NSD review)

reported)
12/2020 - 2/2021
3/2021 -5/2021
6/2021-8/2021
9/2021-11/2021
12/2021 - 2/2022
3/2022 - 5/2022

2,051,133
1,119.879
148,258
74,78367,53745,835

6/2022 - 8/2022
9/2022 - 11/2022
12/2022 - 3/2023

40,58750,131
43,3427
14
25

Approved
Batch Jobs
(emergency
batch jobs
without priorapproval inoarentheses)

7

0

122
40

5
4
14
1

51 (0)

19
4
9

1
0
TBD

49 (0)
53 (2)
17 (0)

88

Given recent indications that the FBI is improving its implementation of Section 702
querying requirements, the Court finds that the FBI' s querying and minimization procedures,
taken as a whole and as likely to be implemented, are consistent with the requirements of thestatute and the Fourth Amendment.

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Authorized for Public Release by ODNIAn NSA analytical unit responsible forisapplied Section 702 tasking standards, resulting in a large number of improper
taskings. In August 2021, NSD started to raise questions about the targeting practices of thisoffice ~arget Office") based on NSD and ODNI targeting reviews. See Final Notice ofCompliance Incidents Regarding Multiple Section 702-Tasked Facilities Related tot 1-5 (Feb. 10, 2023) ("February 10, 2023

Notice"). NSA

initiated its own reviews oftaskings by the - Target Office in December 2021. Id. at 5. NSA
OGC, in conjunction with NSD, completed a comprehensive review of the office's Section 702
taskings. This review identified 571 tasking errors under international terrorism Certifications
2016-B, 2018-B, 2019-B, 2020-B, and 2021-B. Id. passim.59 The erroneous taskings targeted

government concluded that many targeting decisions had been improper because the target was59

It appears that NSA recently discovered four additional incidents involving Target Office, which are not included in the figures stated in the text. See March 2023 QR at 1819 & n.l 6.
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161 32€1& Ill Sl!li 461 GIG ll I foll

not reasonably expected to possess or receive, and was not likely to communicate, foreign
intelligence information related toId.

The government reported other instances as documentation errors because it assessed that
could nevertheless have beena target who lacked
properly targeted

Id. at I, 3, 9. The government concluded that, with proper documentation-these targets could have been properly subject to acquisition under one of the Section

702 certifications. Id. at 9.
NSA has indicated that the erroneous taskings resulted from theTarget Office's

misunderstanding of guidance it had received in 2016 and 2018. Id. at 12. That guidance
included sample statements of targeting rationales, which th-

office mistakenly thought to

NSA has placed all of the tasked selectors at issue on the Master Purge List and recalled
269 reports containing infonnation from these taskings. See id. It has clarified and updated its
targeting guidance to the .

arget Office and offered training on drafting targeting rationales

to analysts enterprise-wide, id. at 12-1 3, which should reinforce that each tasking decision must
be individually justified.

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C.

Use of NSA'

The government recently reported compliance problems regarding an NSA query tool
calledas been in use since at least 2014 and is available toauthorized users at NSA, other DoD entities, and a number of Intelligence Community (IC)agencies. See Notice of a Compliance Incident and Update to a Notice of Matter Under
Investigation at 2, 4 (Mar. l 0, 2023) ("March 10, 2023 Notice"). As described below, NSA has
altered its functioning over time, largely in response to NSD's compliance concerns. The basic
idea, however, is thatusers may perform queries using selectors for foreign

intelligence targets as query terms and receive
involving those targets. See id. at 2-3.
Currently, the only unminimized FISA information

facilities known to be used by targets of foreign intelligence interest or unique identifiers for such

Id. at 3 & n. 5. In the latter case, -targets in NSA' swill automatically provide the selectors to be queried using

Id. at 3 n.5. At

present, only selectors that are currently tasked for acquisition under Executive Order No. 12333

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uery terms, see id. at 4-5,60 but it appears thator Section 702 may be used as

selectors tasked under other provisions of FISA may have been used inqueriespreviously. See id at 4-5. According to NSA, pre-query screening measures prevented non-NSA
ueries using as query terms known selectors of U.S.

users from conducting

persons or persons in the United States. Id. at 4 n.10.
In addition to the

Information displayed bydescribed above,

nformation

returns " limited, minimized information about" query subjects,"including possibly PISA-acquired information, that is retained in NSA 's
For most of the relevant period, nothing prevented

system." Id. at 3.

from displaying such FISA

information, including Section 702 information, in response to queries conducted by non-NSA
users; however, NSA reportedly employed automatic processes to remove infonnation aboutfrom the resultsof such queries before they were displayed to non-NSA users. Id at 5. On September 22, 2022,
NSA reconfiguredo prevent display of any FISA-acquired information to non-

NSA users. See id at 3 n.7, 5.
The government regards

isplay of Section 702 information to non-

NSA users before September 22, 2022, as constituting dissemination of such information. See

id. at 5-6. In view of the limited types of information that

resented to suchusers, it seems likely that limited, if any, U.S.-person information acquired under Section 702

60 The March 10, 2023 Notice states that this restriction came into effect on October 31,

2022, see id. at 5; however, NSD has orally corrected that statement and advised that it did notcome into effect until March 16, 2023.

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was included; however, the government's investigation of potentially non-compliant
disseminations is ongoing.
An NSA official stated in a declaration submitted to the Court that "analyst review isrequired before any dissemination of section 702-acquired infonnation." NSA Deel. Aug. 23,
2022 at 52. The government now describes this as an accurate statement ofNSA policy andpresentation of Section 702 information to non-NSA users as having violated
that policy. See March I 0, 2023 Notice at 6-7. Because the Court regards the statement in the
declaration as an important representation about how NSA implements dissemination
requirements, it is directing the government to promptly report any other deviations from it. See

infra p. 116.

It appears thatusers generally do not apply, at least on a query-by-querybasis, the "reasonably likely to retrieve foreign intelligence information" standard stated in NSA
Querying Procedures§ IV.A. The personnel who managed"relied on rules

generally applicable to information acquired pursuant to Executive Order 12333, despite the factthatueried and disseminated PISA-acquired information. NSA advises that thiserror stemmed from a misunderstanding among NSA personnel." March 10, 2023 Notice at 3-4.
The government acknowledges concern about whether "queries of identifiers tasked pursuant toomply with querying

Executive Order 12333" currently conducted using

requirements. Id. at 6. By negative implication, the government does not have similar concerns
about other queries being conducted using

but it is not clear to the Court whythat should be the case.

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NSD has requested that NSA «investigate possible remedial measures to prevent potential
non-compliant queries," id., but those measures are not yet in effect. Despite the prospect offurther non-compliance regarding internal NSA queries, the Court concludes that use ofdoes not render NSA's procedures, as likely to be implemented, inconsistent withapplicable statutory requirements or those of the Fourth Amendment. The Court bases that
conclusion substantially on the limited type of Section 702 information returned byand the nature of the query tenns used, i.e., selectors for current foreign intelligence targets
under Section 702 or Executive Order No. 12333. Nonetheless, in view of ongoing complianceconcerns and pending investigation into prior non-compliance, the Court is directing thegovernment to provide further information. See infra pp. 116- l l 7.
D.

Improper Retention by NSA

Since the April 21, 2022 Opinion, the government has provided notice of several
instances in which NSA potentially or actually retained Section 702-acquired information thatwas subject to a destruction requirement. These include:•

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Authorized for Public Release by ODNIStarting in 2017, NSA retained raw FISA information in a fol deaccessed and NSA had deleted them all as of March 24, 2022. Id.

•

An NSA workflow system called - m ay contain Section 702 data
subject to purge or age-off requirements. See supra p. 28 .

•-NSA deleted all improperly retained data f r o m ~ s of July 27,
2022. Id.

••s a system that processes data acquired pursuant to
Section 702 and other authorities.

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NSA discovered on August 16, 2022, that a software error caused
the age-off mechanism to stop running in
on July 28,
2021, resulting in retention of Section 702 data beyond the age-off period. Id.
NSA is still investigating the cause of the error, but has implemented systemmonitoring to alert technical personnel when the age-off process is notrunning. Id.
NSA is unlikely to have used this improperly retained data for any investigative or
analytical purpose because the systems involved are not SIGINT Collection-Source Systems ofRecord (SC-SSR). SC-SSRs are repositories for raw SIGINT information that "have appropriate
data management controls (including purging)." March 2023 QR at 3 n.8. With very limited
exceptions, information must reside in an SC-SSR to be authorized for use by NSA analysts.
"are not used toSee, e.g., July 11, 2022 IIIIIIIINotice at 2 (noting that

support FISA applications, intelligence reporting, or Section 702 taskings as they are not SC-SSR
records"); November 28, 2022 Deviation Notice at 4 (noting NSA assessment that data
"would not be able to be used in any

maintained for audit and oversight purposes in

FISA applications, disseminations, or taskings pursuant to Section 702 of FISA"). Records in
and6,2022

were not accessible to analysts. See May

otice at 2; October 12, 2022

otice at 2;

November 22, 202211111i1Notice at 2. And system logs forthat the data in question was not accessed in that system. See June 30, 2022-

Notice at 2. Nonetheless, the number of these incidents indicates a need for NSA to

focus more attention on ensuring that systems that contain Section 702-acquired information
comply with retention limitations.

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E.

Improper U.S.-Person Queries by NSA Using-

The April 2 1, 2022 Opinion described how NSA 's use of a querying tool calledhad sometimes resulted in violations of recordkeeping and approval requirements for use ofU.S.person query terms. April 21, 2022 Opinion at 68. In addition to conducting queries, _In order to avoid use of unapproved U.S.-person query terms in queries of Section 702
information,-

automatically checks seed identifiers against a "defeat list" of known U.S.-

person identifiers drawn from two other NSA systems. Id. But the defeat list did notcomprehensively include all identifiers associated with ones placed on it, with the result that-sometimes ran queries using unapproved U.S.-person query terms. Id. at 69-70. The

government reports that, as of July 8, 2022, NSA successfully implemented a previouslydescribed plan to augment the defeat list so that it includes all such identifiers. See id. at 70-7 1;
September 2022 QR at 130. This problem therefore appears to have been resolved.

F.

Failure to Puree Recalled Reports

It came to light in 2019 that NCTC, NSA, and CIA had retained intelligence reports after
they had been recalled for FISA-compliance reasons. See April 21, 2022 Opinion at 73. In
response, the ODNI revised its DNI IC policy memorandum on recalling intelligence products to
add a new category for recipients to be notified of recalls for FISA-compliance reasons. Id. The'.faOP 019 f91Wil'.fa:1:10f;l;'JfOFOllM'FI0r't

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revised IC policy memorandum ("ICPM 200(0 l )") also directed all IC elements to makeconfonning changes to their internal regulations. Id.
The Court has required periodic reporting on the JC's implementation of ICPM 200(0 l ).
These reports have detailed steady progress in the form of system changes, internal policy
standards and training, and interagency coordination. Id. at 74. Developments since April 2022
include:•

NCTC: NCTC has deleted from its systems the recalled NSA reports containing
FISA information that it had been retaining as of 2019 and completed its own
recall process for three NCTC products that relied on one of those reports. See
Final Notice of a Compliance Incident Regarding the Incomplete Purges of Data
Acquired Pursuant to FISA at 2-3 (Aug. 4, 2022). NCTC now receives automatic
notice of FI SA-compliance recalls by NSA. Id. at 3. Receipt of such a notice
triggers a process within NCTC to determine whether the recalled report exists in
NCTC systems or has been used in any disseminated reports or analyticalproducts. Id. If so, NCTC initiates a process to remove the report and any
products based on it. Id.

•

CIA: On May 17, 2022, ODNI oversight identified a report that had been recalledby NSA for FISA-compliance reasons in CIA's
Notice of a Compliance Incident~ Retention of Data Acquired Pursuant to FISA at 3 (July 6, 2022).
- is accessible throughout the IC. Id. CIA compared a list of all NSA
reports recalled for FISA-compliance reasons with reports inl. .
identified another 24 recalled reports. Id. As of May 26, 2022, all copies of these
25 recalled reports were removed from Id. CIA now uses a
subscription search in NSA's reporting system to alert it to PISA-compliancerecalls ofNSA reports. See id.at 4; Report in Response to April 2 1, 2022
Memorandum Opinion and Order at 21 (Feb. 16, 2023) ("February 16, 2023
Recall Report") (noting that "the subscription service has proven to be reliable
and complete").

llllmd•

FBI: 305 reports recalled by NSA for PISA-compliance reasons - i n c l ~that contained information acquired from improper taskings relating t ~111111,see April 21, 2022 Opinion at 52-55 - remained accessible in FBI
systems until late July 2022. See Final Notice of a Compliance Incident
Regarding Retention of Data Acquired Pursuant to FISA at 3-4 (Jan. 20, 2023).

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On June 30 2022 the FBI discovered that its
ad not been properly updated to distinguish between
administrative recall notices and FISA-compliance recall notices. See id. at 3.
The FBI has corr . ..
and, as of July 24, 2022, has removed copies ofthese reports frod. at 4.

. . ....

•

Army: In March 2022, the Department of Defense (DoD) discovered about 30
NSA reports that had been recalled for FISA-com liance reasons in theessaging
Department of the Army
platform. February 16, 2023 Recall Report at 25. Further Army investigation
identified 762 recalled reports, all of which have now been removed from thesystem. Id. at 26. The government is still investigating these incidents and theeffectiveness of the Army's remediation efforts, including the possibility that- r a nsmitted FISA-recalled reports to other systems. Id. at 26-27.

In addition to addressing these incidents, ODNI has engaged with NSA, CIA, FBI, andNCTC to ensure that they employ the FISA-compliance recall category appropriately andconsistently. For purposes of the ODNI policy, the agencies have adopted a working definitionof "disseminated intelligence products" as "serialized textual intelligence products - which canbe accompanied by imagery - that are made broadly accessible by an IC element to intelligencerecipients." Id. at 9-10. They are also developing a plan for outreach to other recipients toensure handling in accordance with ICPM 200(0 I). Id. at 11.
"A FISA-compliance recall notice shall explicitly state the product is being recalled for a
FISA-compliance reason and must be removed with steps taken to prevent its further use or
disclosure." ICPM 200(01) § B.3 (italics in original). Other types ofrecall notices are merely
required to "state why the product is being revised or recalled and what action is expected or
required of the recipients of the notice." Id The government has advised that a FISAcompliance recall is permitted, but not required, for "[i)nformation that is subject to purge but is
not the result of a FISA-compliance incident." February 16, 2023 Recall Report at 12 n.8.

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Authorized for Public Release by ODNIIOI SECR£1))31)}] ◄ 0FORMFISAFor example, if a non-United States person properly targeted pursuant to Section
702 of FISA traveled to the United States, and NSA detasked the relevant
facilities without delay after learning of the travel, the information collected while
the target was in the United States is not the result of a PISA-compliance incident.
However, that information is generally subject to purge and NSA may choose to
use the PISA-compliance recall process in such a situation.

Id.
It is unlawful to intentionally disclose or use information "knowing or having reason toknow that the information was obtained through electronic surveillance not authorized" under
FISA or another applicable statute. 50 U.S.C. § l 809(a)(2). In approving procedures that permit
an agency to retain and use information from such acquisitions if certain requirements are met,
the FISC has accepted that Section 702 acquisitions are authorized in circumstances where NSA
has a reasonable, albeit mistaken, belief that the target is a non-U.S. person and is locatedoverseas. See supra p. 25. "Nonetheless, the procedures of each agency require destruction of
information obtained under those circumstances, unless the head of the agency authorizes its
retention after making certain findings for the specific information to be retained." April 21,
2022 Opinion at 20-21. By their terms, these destruction requirements6 1 apply to minimized

61

See NSA Minimization Procedures §§ 4(d)(2) ("[a]ny information acquired" under theabove-described circumstances "will be treated as domestic communications"), 6 (domestic
communications, "including information treated as a domestic communication, will be promptly
destroyed upon recognition unless the Director (or Acting Director) ofNSA" makes a specific
written finding that "the sender or intended recipient of the domestic communication had been
properly targeted" and that the communication falls within one of four specified categories); FBI
Minimization Procedures§ III.A.3 ("[a]ny information acquired" under the above-describedcircumstances "will be removed from FBI systems upon recognition, unless the Director or
Deputy Director of the FBI" makes a specific written finding that the information is reasonably
believed to fall within one of three specified categories); CIA Minimization Procedures§ 8("[a]ny information received by CIA that is acquired" under the above-described circumstances(continued ...)

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information, as well as raw information. If one of those agencies disseminates a report that islater determined to contain information subject to such a destruction requirement, the agency
must either (I) obtain specific authorization to retain the information or (2) destroy the
information in whatever form it may appear. The Court is requiring the government to explain
further why an agency that is obligated to destroy such information should have the discretion not
to issue a PISA-compliance recall for any reports it has disseminated that contain suchinformation. See infra p. 115.

G.

Update on User Activitv Monitorin& Activities

The minimization procedures for the FBI, CIA, and NSA have specific provisions forretention of Section 702 information recorded by monitoring of employee activities to detect
insider threats ("user activity monitoring" or "UAM"). See NSA Minimization Procedures § 12;
FBI Minimization Procedures § III.F.7; CIA Minimization Procedures§ 7.e. Such recording may
occur when, for example, an analyst reviews raw Section 702 information on a workstation
subject to UAM. Searches of information recorded by UAM are excluded from the definitions of"query" in those agencies' querying procedures. See FBI Querying Procedures§ III.A; NSA
Querying Procedures § III.A; CIA Querying Procedures § III.A. When it first approved these61( ••• continued)"will be destroyed unless the Director of the CIA" makes a specific written finding that the
information "is reasonably believed to contain significant foreign intelligence information orevidence of a crime"); NCTC Minimization Procedures§ B.4 ("[a]ny information received byNCTC that is acquired" under the above-described circumstances "will be promptly destroyed
upon recognition, unless the Director ofNCTC" makes a specific written finding that the
information "is reasonably believed to contain significant foreign intelligence information orevidence of a crime").
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provisions in December 2019, the Court noted that changes in how the agencies conduct UAM
could affect the grounds for such approval and ordered the government to provide periodic
updates regarding UAM systems and processes. See December 6, 2019 Opinion at 35, 41, 82-83.
The Court carried forward that requirement in April 2022, see April 21, 2022 Opinion at 125-26,
and does so again now. See infra p. 116.
In late March 2023, the government filed updates on the agencies' UAM activities. 62
NSA reported that it is collecting the same types of UAM data, but has made "analytic
improvements to facilitate greater use" of such data. NSA UAM Update March 31, 2023 at 8.

Id. at 9-10. NSA limits access to UAM data on such platforms to authorized
personnel. Id. at I 0. It has also increased the number of personnel authorized to access UAM
data from

Id. at 1 I.

CIA reported that it is performing additional analysis of audit data for systems that
personnel use to access unminimized FISA information; however, this audit data does notinclude such FISA information. CIA/NCTC UAM Update March 29, 2023 at 8. Id. CIA has
increased the number of personnel who have access to UAM data from, due to anincrease in the number and complexity of systems involved. Id. at 14-15. Access to CIA UAM

62

Specifically, one was for the FBI, one for the CIA and NCTC, and one for NSA, each
titled "Government's Updated Description of the [agency name] Insider Threat and Routine
Employee Monitoring Activities and Assessed Implications for the FISA Standard Minimization
and Querying Procedures." The respective reports are cited as "FBI UAM Update March 31,
2023," "CIA/NCTC UAM Update March 29, 2023," and "NSA UAM Update March 31, 2023."'f Of 9EClffi'fh'91h'rifOPOR:Ni't119A

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repositories continues to be restricted to authorized personnel for UAM purposes and theirinteraction with the data is logged and available for audit. Id. at 14-16.
The FBI appears to have granted many more persons access to UAM data. In 2021, theFBI reported that approximately.

persons were authorized to access its UAM tool. See FBI

UAM Update March 26, 2021 at 11. Now access to UAM data at the FBI includes, but is not
limited to, the following:•

approximate!
UAM data in
see FBI UA

ersons currentl have authorized access to networks containing
3••

approximatelyersons have access to U AM data i
Collaboration Services Unit (UCSU) repository, 65 see 1•

Such proliferation of access may increase risk of error or misuse of any Section 702 information
within UAM data. But here the risk still appears manageable, partly because "UAM systems

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contain a limited amount of unminimized Section 702 information, particularly in comparison to
the main repositories of such information." December 6, 2019 Opinion at 38. Indeed, the FBI
reports that, "[i]n carrying out its UAM activities, [it) has not identified any instances in whichunminimized FISA-acquired information has been recorded." Id. at 18.
Based on the information provided, the Court sees no reason to depart from its priorconclusion that the agencies' UAM-related practices are consistent with finding that the querying
and minimization procedures, as likely to be implemented, are consistent with statutory and
Fourth Amendment requirements.

H.

Other Incidents

The Court has also considered the nature and frequency of other instances of noncompliance reported since the April 22, 2022 Opinion and generally regards as reasonable thesteps taken by the government to mitigate them and prevent similar occurrences. 67 Afterconsidering the overall state of implementation of the targeting, querying, and minimization
procedures now in effect, the Court finds that the procedures submitted with the 2023

67

These include tasking errors, see, e.g., March 2023 QR at 6-21 , 68-72 (reporting.
tasking errors at NSA andf non-compliance with FBI targeting procedures during
the most recent quarterly reporting period); delayed detasking of selectors, see, e.g., id. at 21-43(reportin~uch incidents at NSA); dissemination errors, see, e.g., id. at 45-47 (reporting.
such errors at NSA); querying errors, see, e.g., id. at 48-53, 97 (reporting uch errors at NSA,
ofwhich■nvolved U.S. person query terms, and-uch errors at NCTC). Most of theseincidents resulted from human error and were addressed through retraining of the personnel
involved. But see, e.g., Preliminary Notice of Compliance Incident Regarding System Error
Resulting in Multiple Delayed Detaskings at 1-2 (Jan. 9, 2023) (system error during October 2931, 2022, resulted in delayed transmittal and implementation of lll1etasking orders).
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ff 8 f 013 OftlJff;f/0I;i;'18 f 8 iffJ f;fiI0J\
Certifications, as likely to be implemented, comply with applicable statutory and Fourth
Amendment requirements.

VII.

CONCLUSION
For the foregoing reasons, the Court finds that:(1) The 2023 Certifications, as well as the certifications in the Prior 702 Dockets, as

amended by the 2023 Certifications and the Second Amendment to Certification 202 1-B, containall the required statutory elements;(2) The targeting procedures for acquisitions conducted pursuant to the 2023
Certifications are consistent with the requirements of Section 702(d) and of the Fourth
Amendment;(3) With respect to information acquired under the 2023 Certifications, the minimization
procedures and querying procedures are consistent with the requirements of Section 702(e) andSection 702(f)(l), respectively, and of the Fourth Amendment;(4) With respect to information acquired under the certifications in the Prior 702
Dockets, as amended, the minimization procedures (including, as referenced therein, therequirements of the respective agencies' querying procedures) are consistent with therequirements of Section 702(e) and of the Fourth Amendment; and(5) The querying procedures approved for use in connection with DNI/AG 702(h)Certification 2018-A, DNI/AG 702(h) Certification 2018-B, DNI/AG 702(h) Certification 2018C, DNI/AG 702(h) Certification 2019-A, DNI/AG 702(h) Certification 2019-B, DNI/ AG 702(h)Certification 2019-C, DNI/ AG 702(h) Certification 2020-A, DNI/AG 702(h) Certification 2020-

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B, DNI/AG 702(h) Certification 2020-C, DNI/AG 702(h) Certification 2021-A, DNI/AG 702(h)Certification 2021-B, and DNI/AG 702(h) Certification 2021-C are consistent with therequirements of Section 702(f)( 1) and of the Fourth Amendment. (The Court does not make anequivalent finding regarding the other certifications in the Prior 702 Dockets because Section
702(f) only applies "with respect to certifications submitted under [Section 702(h)] ... afterJanuary I, 2018." Reauthorization Act§ 10l(a)(2).); and, accordingly,
IT IS HEREBY ORDERED AS FOLLOWS:(1) The government's submissions are approved, as set out below:

a. The 2023 Certifications and the certifications in the Prior 702 Dockets, as amended,
are approved;b. The use of the targeting procedures for acquisitions conducted pursuant to the 2023
Certifications is approved; andc. With respect to information acquired under the 2023 Certifications and thecertifications in the Prior 702 Dockets, the use of the minimization procedures and querying
procedures is approved;(2) Separate orders memorializing the dispositions described above are being issued
contemporaneously herewith pursuant to Section 702(j)(3)(A);(3) The government shall adhere to the following requirements (prospectively, thegovernment need not comply with reporting requirements imposed by FISC opinions and orders
in the Prior 702 Dockets, except as reiterated below):

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a. Raw infonnation obtained by NSA's

under Section 702,
shall not be provided to

the FBI, the CIA or NCTC unless it is done pursuant to revised minimization procedures that are
adopted by the AG and DNI and submitted to the FISC for review in conformance with Section
702;
b. On or before December 31 of each calendar year, the government shall submit awritten report to the FISC: (a) describing all administrative-, civil-, or criminal-litigation mattersnecessitating preservation by the FBI, NSA, CIA, or NCTC of Section 702-acquired infonnationthat would otherwise be subject to destruction, including the docket number and court or agency
in which such litigation matter is pending; (b) describing the Section 702-acquired information
preserved for each such litigation matter; and (c) describing the status of each such litigation
matter;c. The government shall promptly submit a written report describing each instance inwhich an agency invokes the provision of its minimization or querying procedures providing an
exemption for responding to congressional mandates, as discussed in Part IV.D.3 of the October18, 20 18 Opinion. Each such report shall describe the circumstances of the deviation from theprocedures and identify the specific mandate on which the deviation was based;d. The government shall submit in each quarterly report on Section 702 compliancematters a report of each instance in which FBI personnel accessed unminimized Section
702-acquired contents infonnation that the user identified as a Query ON LY for evidence ofcrime. Except for queries for which an application is filed with the Court pursuant to Section

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702(f)(2), the report shall include the FBI's basis for concluding that the query was consistent
with applicable procedures. This report shall also include: (i) the number of U.S.-person queries
run by the FBI against Section 702-acquired information; (ii) the number of such queries
identified by the user as evidence-of-crime-only queries; (iii) the number of instances in whichusers stated that they had received approval from an FBI attorney to perform a "batch job" that
includes I 00 or more queries; and (iv) the number of instances in which users did not receive
prior approval from an FBI attorney for such a "batch job" due to emergency circumstances;e. The government shall continue to submit reports to the Court on a quarterly basis onnder Section 702. This report shall: (i) describe theii) explain how the government is ensuring that it will only acquirecommunications to or from a Section 702 targetand (iii)

describe methods the government is using to monitor compliance with the abouts limitation ■ollection and report on the results of such monitoring;f. No later than ten days after tasking for upstream collection under Section 702

Court. This notice shall: (i) describe(ii) explain how

ill comply with the abouts limitation; and (iii) describe steps that will be taken'fOf 91BCtffl'fh'9lh1-i'O:FOM4,'Pl9A

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during the course of the proposed acquisition to ensure thatis onlyacquiring communications to or from authorized Section 702 targets;g. On or before December 31 of each calendar year, the government shall submit in
writing a report to the Court containing the following information: (i) the number of Section 702acquired products disseminated or disclosed to the National Center for Missing and ExploitedChildren (NCMEC); and (ii) the number of disseminations or disclosures by the NCMEC toother law-enforcement entities of Section 702-acquired information;h. Prior to implementing changes to policies or practices concerning (i) the release of
Section 702-acquired information from the NCMEC to Interpol 's International Child Sexual
Exploitation database or (ii) approval to use Section 702-acquired information disseminated to
the NCMEC in any proceeding, the government shall make a written submission to the Court
describing such changes and explaining why implementing them would be consistent withapplicable minimization procedures and statutory minimization requirements;
i. The government shall submit an update by February 16, 2024, specifying, asapplicable: (i) steps taken or to be taken by the FBI, NSA, CIA, and NCTC to coordinate theirpolicies and procedures to identify and handle disseminated analytical reports derived fromFISA-compliance recalled reports, and to verify receipt of notice of reports recalled for FISAcompliance reasons; (ii) ODNI guidance regarding the definition of the term "disseminatedintelligence products" as used in ICPM 200(0 1); and (iii) steps taken or to be taken to facilitate aconsistent application among the FBI, NSA, CIA, and NCTC of the FISA-compliance recall
category;liOP iiGllirf''il''JfOFOf\M'licli1•

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J. The government shall make a written submission within 90 days of this Order
addressing: (i) how the respective agencies comply with the destruction requirements ofNSA
Minimization Procedures§§ 4(d)(2), (6); FBI Minimization Procedures§ 111.A.3 ; CIA
Minimization Procedures § 8; and NCTC Minimization Procedures § B.4 for Section 702acquired infonnation that was put in reports issued to other agencies before it was recognizedthat such information had been acquired at a time when the agency conducting the acquisition
reasonably, but mistakenly, believed that the target was both a non-U.S. person and locatedoutside of the United States, including but not limited to whether and how such reports arerecalled;
k. The requirement to provide an update to each agency's user activity monitoring(UAM) submission that appears on pages 82-83 of the December 6, 2019 Opinion shall remain in
effect, with the next report due in March 2025 and subsequent reports due at two-year intervals
thereafter;

I. No later than ten days after the NCTC Director delegates authority to any Group Chiefor official within the Directorate of Identity Intelligence to make the determination required
under NCTC Minimization Procedures§ D.3.b., the government shall submit a notice to the
Court. This notice shall: (i) identify the individual to whom the delegation was made; (ii)describe the duties of such individual; and (iii) explain the reason(s) for the delegation to suchindividual and the scope and duration of the delegation;
m. The government shall promptly report to the Court: (i) any change to the requirementthat Section 702 information be reviewed by a human analyst before it is disseminated by NSA,

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as referenced in the NSA Deel. Aug. 23, 2022 at 52; and (ii) any discovery of a dissemination by
NSA of Section 702 information without prior review by an analyst, notwithstanding thereferenced requirement;
n. The government shall make a written submission within 90 days of this Order: (1)updating the Court on the investigation of prior non-compliance regarding use ofincluding any remedial measures taken or to be taken; and (2) describing any steps taken or to betaken to prevent potential non-compliant queries of Section 702-acquired information using

If the planning and implementation of the steps described in (1) and (2) above
are not completed at the time of such written submission, the government shall submit written
updates at 90-day intervals thereafter;o. The government shall make a written submission within 120 days of this Orderdescribing how NSA will ensure that its use of

andconform to NSA 's querying procedures as interpreted at pages 42-43 of this Opinion;p.

iscussed herein, NSA' s post-tasking review shall include

periodic examination of information recently obtained

q. The government shall provide to the Court a written description of any of thefollowing occurrences:(a) NSA comes to believe that (i)'fOF 0IJOM'f,:,:01:1:'.JlOFOllfis'f'I0fft

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Such descriptions shall be submitted within 10 days of the applicable occurrence and describe thegovernment's response thereto and assess any statutory or Fourth Amendment issues presented.

ENTERED thisJi!!... day of April, 2023.
RUDOLPC0NTRERAS
Presiding Judge, United States ForeignIntelligence Surveillance Court'•- - Deputy
C l e ~ that thisdocument is a true andcorrect copy of the ori . ir.al.

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