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PRI V ACY & CI VIL LI BE RTIES OVE RSIG H T BO ARD

Recommendations Assessment Report

February 5, 2016

INTRODUCTION

In 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) issued reports on 

the government’s Section 215 and Section 702 surveillance programs. Combined, these 

two reports made 22 recommendations to ensure that these programs appropriately 

balance national security with privacy and civil liberties.

In January 2015, the PCLOB released an assessment of the status of these 

recommendations, which included descriptions of efforts that were being made by the 

government to implement them. This document is an update on the status of these PCLOB 

recommendations.

All of the PCLOB’s 22 recommendations have been implemented in full or in 

part, or the relevant government agency has taken significant steps toward adoption 

and implementation. 

As a result, since the release of these two reports, important measures have been 

taken to enhance the protection of Americans’ privacy and civil liberties and to strengthen 

the transparency of the government’s surveillance efforts, without jeopardizing our 

counterterrorism efforts. 

Implementation of these recommendations is the result of both action on the part of 

relevant government agencies and passage of the USA FREEDOM Act, which was enacted in 

June, 2015. The USA FREEDOM Act addressed most of the recommendations in PCLOB’s 

Section 215 report. In addition, the Administration has been working to implement all of 

the recommendations in the Board’s Section 702 report. 

The PCLOB is an independent, bipartisan agency within the executive branch, 

charged with ensuring that the federal government’s efforts to prevent terrorism are 

balanced with the need to protect privacy and civil liberties. The Board’s analyses of the 

Section 215 and 702 programs from a legal and policy perspective informed the Board’s 

recommendations. While most of the recommendations were directed at the executive 

branch, and in particular, elements of the Intelligence Community, some recommendations 

were directed at Congress or the Foreign Intelligence Surveillance Court (“FISC” or “FISA 
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court”). For each of the Board’s 22 recommendations, this document explains the 

recommendation; describes the steps taken to implement it; and offers the Board’s 

assessment of how fully it has been adopted. 

Overall, the Board continues to find the Administration and the Intelligence 

Community responsive to its recommendations. 

While nine of the 22 recommendations are still in the process of being implemented 

or have been only partially implemented, the Board looks forward to continued 

consultation with the Administration and the Intelligence Community regarding their 

efforts. 

Highlights of implementation of PCLOB’s Section 215 recommendations: 

 Consistent with PCLOB’s recommendation, the USA FREEDOM Act ended the NSA’s 

bulk telephone records program conducted under Section 215. Enactment of this 

legislation also addressed recommendations to enable the FISA court to hear 

independent views on novel and significant matters and to expand opportunities for 

appellate review of FISA court decisions. 

 As recommended by PCLOB, the USA FREEDOM Act also includes additional 

requirements for public reporting to promote transparency. The public reporting 

will include information regarding the appointment of individuals to provide 

independent views before the FISA court as well as statistical information about 

government surveillance. In addition, the Act permits further statistical reporting by 

private companies regarding the frequency with which they receive government 

demands for their data.

 As recommended by PCLOB, the government has taken significant steps toward 

developing principles and criteria for intelligence transparency for the Intelligence 

Community. 

Highlights of implementation of PCLOB’s Section 702 recommendations: 

 As part of the annual process of reauthorizing the Section 702 program, the 

government submitted revised targeting and minimization procedures for approval 

by the FISA court. These revised procedures, all of which were approved by the 

court, include changes designed to address several recommendations in the Board’s 

report. 

 In seeking annual recertification of the Section 702 program, the government 

submitted all the supplemental materials recommended by the PCLOB in 

Recommendations 4 and 5, thereby facilitating the FISA court’s assessment of the 

Section 702 program. 
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SECTION 215 REPORT RECOMMENDATIONS

Recommendation 1: End the NSA’s Bulk Telephone Records Program

Status: 

Implemented (USA FREEDOM Act)

Text of the Board’s Recommendation:

The government should end its Section 215 bulk telephone records program.1

Explanation for the Recommendation:

The Board concluded that the Section 215 bulk telephone records program lacks a viable 

legal foundation under Section 215, implicates constitutional concerns under the First and 

Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, 

and has shown only limited value. As a result, the Board recommended that the 

government end the program. Without the current Section 215 program, the government 

would still be able to seek telephone calling records directly from communications 

providers through other existing legal authorities.

Discussion of Status:

The USA FREEDOM Act, enacted on June 2, 2015, ended the bulk telephone records 

program, along the lines of the Board’s recommendation. The Act established a new system 

under Section 215 for government access to call detail records in terrorism investigations. 

To obtain call detail records under the new system, the government must identify a 

“specific selection term” that is reasonably suspected of being associated with terrorism, 

and it can obtain only records of calls up to two “hops” from that number, with FISC

approval. The NSA began operation of the new system on November 30, 2015. 

 

Recommendation 2: Immediately Add Additional Privacy Safeguards to 

the Bulk Telephone Records Program

Status: 

Implemented in part; Superseded by USA FREEDOM Act

Text of the Board’s Recommendation:

The government should immediately implement additional privacy safeguards in operating 

the Section 215 bulk collection program.

 

1 Board Members Rachel Brand and Elisebeth Collins did not join this recommendation.
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Explanation for the Recommendation:

The Board recommended that the government immediately implement several additional 

privacy safeguards to mitigate the privacy impact of the present Section 215 program. The 

Board noted that the recommended changes can be implemented without any need for 

congressional or FISC authorization.

Discussion of Status:

The Board proposed that four new safeguards be implemented if the bulk telephone 

records program were to continue for any period of time. In the Recommendations 

Assessments Report released by the Board in January 2015, the Board described how the 

Administration had partially implemented the recommendation. Now that 

Recommendation 1 has been fully implemented through enactment of the USA FREEDOM 

Act, Recommendation 2 has been superseded. There is no longer a Section 215 bulk 

telephone records program to which additional privacy safeguards could be applied. 

Recommendation 3: Enable the FISC to Hear Independent Views on 

Novel and Significant Matters

Status: 

Implemented (USA FREEDOM Act)

Text of the Board’s Recommendation:

Congress should enact legislation enabling the FISC to hear independent views, in addition 

to the government’s views, on novel and significant applications and in other matters in 

which a FISC judge determines that consideration of the issues would merit such additional 

views.

Explanation for the Recommendation:

Although the FISC continues to review applications for individualized FISA warrants, in the 

past decade it has also been called upon to evaluate requests for broader collection 

programs, such as the Section 215 telephone records program, and to review extensive 

compliance reports regarding the implementation of the surveillance authorized under 

Section 702. This expansion of the FISC’s jurisdiction has presented it with complex and 

novel issues of law and technology. Currently, these issues are adjudicated by the court 

based only on filings by the government, supplemented by the research and analysis of the 

judges and their experienced legal staff. 

The Board believes that, when FISC judges are considering requests for programmatic 

surveillance affecting numerous individuals or applications presenting novel issues, they 

should have the opportunity to call for third-party briefing on the legal issues involved. In 
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addition to assisting the court, a mechanism allowing FISC judges to call upon independent 

expert advocates for a broader range of legal views could bolster the public’s trust in its 

operations and in the integrity of the FISA system overall.

Discussion of Status:

Section 401 of the USA FREEDOM Act established a process for hearing independent views 

that is largely consistent with the Board’s recommendation. This provision closely mirrors 

the Board’s proposal regarding “the establishment of a panel of outside lawyers to serve as 

Special Advocates before the FISC in appropriate cases.” Like the Board’s proposal, the USA 

FREEDOM Act authorizes the presiding judge of the FISC to appoint a panel of at least five 

private sector attorneys, eligible for security clearances and with relevant professional 

experience, to participate in matters that a FISC judge determines involve a novel or 

significant interpretation of the law, including the application of law to new technologies. 

(Alternatively, a FISC judge may issue a written finding that such appointment is not 

appropriate in a given case.) Under the USA FREEDOM Act, these individuals are 

designated to serve “as amicus curiae” rather than as “Special Advocates” as in the Board’s 

proposal, but the legislation does provide that the amici will be tasked with making 

arguments addressing privacy and civil liberties, and will have access to relevant materials, 

including government applications, petitions, and motions. Unlike the Board’s proposal, the 

Act does not mandate that the amici be “permitted to participate in all proceedings related 

to that application or matter” or “have access to all government filings” (emphasis added). 

Our report notes, however, that the FISC has the power to establish specific rules regarding 

the Special Advocate’s or amici’s participation through its internal Rules of Procedure.

The FISC has begun appointing individuals to serve as amici in particular matters, and in 

November 2015, the FISC designated a standing panel of five individuals to serve as amicus 

curiae as required under the Act. 

Recommendation 4: Expand Opportunities for Appellate Review of FISC 

Decisions

Status:

Implemented (USA FREEDOM Act)

Text of the Board’s Recommendation:

Congress should enact legislation to expand the opportunities for appellate review of FISC 

decisions by the FISCR and for review of FISCR decisions by the Supreme Court of the 

United States.
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Explanation for the Recommendation:

Over the past decade, the FISC has generated a significant body of law interpreting FISA 

authorities and other potentially applicable statutes, and analyzing related constitutional 

questions. However, FISC opinions have been much less likely to be subject to appellate 

review than the opinions of ordinary federal courts; to date, only two cases have been 

decided by the Foreign Intelligence Surveillance Court of Review (“FISCR”). There should 

be a greater opportunity for appellate review of FISC decisions by the FISCR and for review 

of the FISCR’s decisions by the Supreme Court of the United States. Providing for greater 

appellate review of FISC and FISCR rulings will strengthen the integrity of judicial review 

under FISA. Providing a role for the Special Advocate in seeking that appellate review will 

further increase public confidence in the integrity of the process.

Discussion of Status:

Section 401 of the USA FREEDOM Act expands the opportunities for appellate review of 

FISC decisions by the FISCR and for review of FISCR decisions by the Supreme Court of the 

United States.

Like the Board’s proposal, the Act authorizes the FISC, after issuing an order, to certify a 

question of law to be reviewed by the FISCR. Similarly, the Act authorizes the FISCR to 

certify a question of law to be reviewed by the U.S. Supreme Court. In each circumstance, 

the higher court would decide whether to review the question certified by the lower court.

The USA FREEDOM Act provides fewer guarantees than the Board’s proposal that any 

participating amicus curiae will be allowed to participate in the appellate review process —

both in the decision about whether to certify a question of law for review, and in the 

proceedings that take place once a question has been certified. Unlike the Board’s proposal, 

the Act provides no mechanism for an amicus curiae to request certification of a FISC or 

FISCR decision, and it provides no mechanism by which an amicus curiae can challenge the 

FISC’s decision not to certify a legal question for appellate review. The Board notes that 

FISC and FISCR rules of procedure could be revised to provide such mechanisms. In 

addition, under the Board’s proposal, when a legal question is accepted for review by the 

FISCR, the Special Advocate would be permitted to participate in the matter, just as in the 

FISC. By contrast, under the USA FREEDOM Act, such participation is permitted only when 

the FISCR also determines that the matter presents a novel or significant interpretation of 

the law. The Act also provides that upon certification of a matter to the U.S. Supreme Court, 

the Court “may appoint an amicus curiae” designated under the provisions of the Act.
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Recommendation 5: Take Full Advantage of Existing Opportunities for 

Outside Legal and Technical Input in FISC Matters

Status: 

Implemented

Text of the Board’s Recommendation:

The FISC should take full advantage of existing authorities to obtain technical assistance 

and expand opportunities for legal input from outside parties.

Explanation for the Recommendation:

FISC judges should take advantage of their ability to appoint Special Masters or other 

technical experts to assist them in reviewing voluminous or technical materials, either in 

connection with initial applications or in compliance reviews. In addition, the FISC and the 

FISCR should develop procedures to facilitate amicus participation by third parties in cases 

involving questions that are of broad public interest, where it is feasible to do so consistent 

with national security.

Discussion of Status:

As described in connection with Recommendation 3 above, the FISC has obtained legal 

input from outside experts pursuant to the USA FREEDOM Act. Further, based on 

conversations with FISA court personnel, the Board understands that efforts are underway 

for the court to designate one or more individuals to serve as amici who have technical 

expertise, in addition to the already appointed panel of individuals with legal expertise.

Recommendation 6: Publicly Release New FISC and FISCR Decisions that 

Involve Novel Legal, Technical, or Compliance Questions

Status: 

Implemented

Text of the Board’s Recommendation:

To the maximum extent consistent with national security, the government should create 

and release with minimal redactions declassified versions of new decisions, orders and 

opinions by the FISC and FISCR in cases involving novel interpretations of FISA or other 

significant questions of law, technology or compliance.

Explanation for the Recommendation:

FISC judges should continue their recent practice of drafting opinions in cases involving 

novel issues and other significant decisions in the expectation that declassified versions 
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will be released to the public. This practice has facilitated declassification review. The 

government should promptly create and release declassified versions of these FISC 

opinions.

Discussion of Status:

The government has continued to declassify and release additional opinions over the past 

year. In addition, the USA FREEDOM Act now requires that the government will conduct a 

declassification review of each new decision of the FISC and FISCR “that includes a 

significant construction or interpretation of any provision of law,” including decisions 

interpreting the term “specific selection term” under the new system for accessing call 

detail records, and that the government will make declassified versions of these opinions 

publicly available to the greatest extent practicable. The Board also notes that the FISA 

court maintains its own website where, at least since April 2014, it has been posting public 

filings including briefs and declassified opinions and orders.

Recommendation 7: Publicly Release Past FISC and FISCR Decisions that 

Involve Novel Legal, Technical, or Compliance Questions

Status: 

Being implemented

Text of the Board’s Recommendation:

Regarding previously written opinions, the government should perform a declassification 

review of decisions, orders and opinions by the FISC and FISCR that have not yet been 

released to the public and that involve novel interpretations of FISA or other significant 

questions of law, technology or compliance.

Explanation for the Recommendation:

The government should create and release declassified versions of older opinions in novel 

or significant cases to the greatest extent possible consistent with protection of national 

security. This should cover programs that have been discontinued, where the legal 

interpretations justifying such programs have ongoing relevance. 

Although it may be more difficult to declassify older FISC opinions drafted without 

expectation of public release, the release of such older opinions is still important to 

facilitate public understanding of the development of the law under FISA. The Board 

acknowledges the cumulative burden of these transparency recommendations, especially 

as the burden of review for declassification may fall on the same individuals who are 

responsible for preparing new FISA applications, overseeing compliance with existing 

orders, and carrying out other duties. The Board urges the government to develop and 
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announce some prioritization plan or approach. We recommend beginning with opinions 

describing the legal theories relied upon for widespread collection of metadata from 

Americans not suspected of terrorist affiliations, to be followed by opinions involving 

serious compliance issues.

Discussion of Status:

The Intelligence Community has continued to declassify and release previously issued FISC 

decisions and related materials over the past year. These have been posted both on the 

FISA court’s website and on the Intelligence Community’s website, IC on the Record.

The Intelligence Community has advised us that it remains committed to implementing this 

recommendation, and that it will continue to conduct declassification reviews of both older 

and more recent opinions. 

Recommendation 8: Publicly Report on the Operation of the FISC Special 

Advocate Program

Status: 

Implemented (USA FREEDOM Act)

Text of the Board’s Recommendation:

The Attorney General should regularly and publicly report information regarding the 

operation of the Special Advocate program recommended by the Board. This should 

include statistics on the frequency and nature of Special Advocate participation in FISC and 

FISCR proceedings.

Explanation for the Recommendation:

Should the government adopt our recommendation for a Special Advocate in the FISC, the 

nature of that advocate’s role must be transparent to be effective. The FISC should publicly 

disclose any rules the court adopts governing the advocate’s participation in proceedings. 

In addition, the Attorney General should regularly and publicly report statistics on the 

frequency of Special Advocate participation, including the number of times Special 

Advocates have sought review of FISC decisions in the FISCR and the U.S. Supreme Court.

Discussion of Status:

Section 603 of the USA FREEDOM Act requires the Administrative Office of the United 

States Courts annually to report to the intelligence and judiciary committees of Congress on 

the number of times that an amicus curiae is appointed, the identity of the appointee, the 

number of times that a FISC judge determines that participation of an amicus curiae is not 

appropriate, and the text of the written findings supporting such determinations. The Act 
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also requires that this information be reported publicly — except for any written findings 

supporting any decision not to appoint an amicus curiae. 

Recommendation 9: Permit Companies to Disclose Information about 

Their Receipt of FISA Production Orders, and Disclose More Detailed 

Statistics on Surveillance

Status: 

Implemented (USA FREEDOM Act)

Text of the Board’s Recommendation:

The government should work with Internet service providers and other companies that 

regularly receive FISA production orders to develop rules permitting the companies to 

voluntarily disclose certain statistical information. In addition, the government should 

publicly disclose more detailed statistics to provide a more complete picture of government 

surveillance operations.

Explanation for the Recommendation:

One important way to understand and assess any government program is numerically — to 

categorize its critical elements and count them. Periodic public reporting on surveillance 

programs is a valuable tool promoting accountability and public understanding. We believe 

that publication of additional numerical information on the frequency with which various 

surveillance authorities are being used would be possible without allowing terrorists to 

improve their tradecraft. 

In recent years, U.S. companies have begun publishing reports showing, country by 

country, how many government demands they receive for disclosure of user data. Because 

we believe this kind of reporting can be useful in building and maintaining public trust, we 

recommended that the government work with companies to permit disclosure of more 

detailed information. 

In addition, the Board recommended that the government report more detailed 

information. To ensure that government reports are meaningful, the government would 

have to distinguish between particularized programs and those involving bulk collection. In 

the case of targeted programs, the government should disclose how many orders have been 

issued and how many individuals have been targeted. 

Discussion of Status:

Title VI of the USA FREEDOM Act both requires further public reporting by the government 

and permits further transparency reporting by private companies, and thus covers both 

parts of the Board’s recommendation.
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Recommendation 10: Inform the PCLOB of FISA Activities and Provide 

Relevant Congressional Reports and FISC Decisions

Status: 

Being implemented

Text of the Board’s Recommendation:

The Attorney General should fully inform the PCLOB of the government’s activities under 

FISA and provide the PCLOB with copies of the detailed reports submitted under FISA to 

the specified committees of Congress. This should include providing the PCLOB with copies 

of the FISC decisions required to be produced under Section 601(a)(5) [of FISA].

Explanation for the Recommendation:

Beyond public reporting, FISA requires the Attorney General to “fully inform” the Senate 

and House intelligence and judiciary committees regarding the government’s activities 

under certain sections of FISA, including Section 215. FISA also requires the government to 

provide the congressional committees with copies of “all decisions, orders, or opinions” of 

the FISC or FISCR that include “significant construction or interpretation” of the provisions 

of FISA. These two reporting requirements facilitate congressional oversight. The Board 

urges the government to extend this complete reporting to the PCLOB as well, to facilitate 

the Board’s oversight role.

Discussion of Status:

The Intelligence Community and the Justice Department have provided the PCLOB with 

many of the congressional reports and FISC decisions described above. Although not all 

such documents have yet been provided, the Intelligence Community and the Justice 

Department have also taken steps to implement a standing production system, under 

which documents submitted to Congress will be routinely provided to PCLOB as well. The 

Justice Department made the first production to PCLOB in what has been represented to be 

a new standing production system in January 2016.

Recommendation 11: Begin to Develop Principles for Transparency

Status: 

Implemented

Text of the Board’s Recommendation:

The Board urges the government to begin developing principles and criteria for 

transparency.
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Explanation for the Recommendation:

Transparency is one of the foundations of democratic governance. Our constitutional 

system of government relies upon the participation of an informed electorate. This in turn 

requires public access to information about the activities of the government. Transparency 

supports accountability. It is especially important with regard to activities of the 

government that affect the rights of individuals. In addition to the specific transparency 

measures outlined in Recommendations 6 through 10, the Board urges the Administration 

to commence the process of articulating principles and criteria for deciding what must be 

kept secret and what can be released as to existing and future programs that affect the 

American public.

Discussion of Status:

In February 2015, the Office of the Director of National Intelligence (“ODNI”) released 

Principles of Intelligence Transparency for the Intelligence Community describing four 

broad principles to guide the Intelligence Community’s work. On October 27, 2015, the 

ODNI released an Implementation Plan for these principles, setting forth a series of 

priorities and action items.

Recommendation 12: Disclose the Scope of Surveillance Authorities 

Affecting Americans

Status: 

Being implemented 

Text of the Board’s Recommendation:

The scope of surveillance authorities affecting Americans should be public.2

Explanation for the Recommendation:

The Administration should develop principles and criteria for the public articulation of the 

legal authorities under which it conducts surveillance affecting Americans. If the text of the 

statute itself is not sufficient to inform the public of the scope of asserted government 

authority, then the key elements of the legal opinion or other document describing the 

government’s legal analysis should be made public so there can be a free and open debate 

regarding the law’s scope. This includes both original enactments such as Section 215’s 

revisions and subsequent reauthorizations. The Board’s recommendation distinguishes 

between “the purposes and framework” of surveillance authorities and factual information 

specific to individual persons or operations. While sensitive operational details regarding 

the conduct of government surveillance programs should remain classified, and while legal 

 

2 Board Members Rachel Brand and Elisebeth Collins did not join this recommendation.
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interpretations of the application of a statute in a particular case may also be secret so long 

as the use of that technique in a particular case is secret, the government’s interpretations 

of statutes that provide the basis for ongoing surveillance programs affecting Americans 

can and should be made public. This includes intended uses of broadly worded authorities 

at the time of enactment as well as post-enactment novel interpretations of laws already on 

the books.

Discussion of Status:

Intelligence Community representatives have continued to advise us that they are 

committed to implementing this recommendation, as reflected in the transparency 

principles described above. In our Recommendations Assessments Report last year, we 

noted that in connection with the Board’s July 2014 report on the Section 702 surveillance 

program, the Intelligence Community worked closely with the Board to declassify a great 

deal of information about the scope and nature of that surveillance program. We also note 

that the Intelligence Community has continued to publish information online at IC on the 

Record, and the NSA has recently released a new Transparency Report outlining the 

agency’s implementation of the USA FREEDOM Act. 

While the broad nature of our recommendation makes it difficult for us to assess its 

implementation, we believe that key leadership within the Intelligence Community is 

committed to implementation.
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SECTION 702 REPORT RECOMMENDATIONS

Recommendation 1: Revise NSA Procedures to Better Document the 

Foreign Intelligence Reason for Targeting Decisions

Status: 

Implemented in part

Text of the Board’s Recommendation:

The NSA’s targeting procedures should be revised to (a) specify criteria for determining the 

expected foreign intelligence value of a particular target, and (b) require a written 

explanation of the basis for that determination sufficient to demonstrate that the targeting 

of each selector is likely to return foreign intelligence information relevant to the subject of 

one of the certifications approved by the FISA court. The NSA should implement these 

revised targeting procedures through revised guidance and training for analysts, specifying 

the criteria for the foreign intelligence determination and the kind of written explanation 

needed to support it. We expect that the FISA court’s review of these targeting procedures 

in the course of the court’s periodic review of Section 702 certifications will include an 

assessment of whether the revised procedures provide adequate guidance to ensure that 

targeting decisions are reasonably designed to acquire foreign intelligence information 

relevant to the subject of one of the certifications approved by the FISA court. Upon 

revision of the NSA’s targeting procedures, internal agency reviews, as well as compliance 

audits performed by the ODNI and DOJ, should include an assessment of compliance with 

the foreign intelligence purpose requirement comparable to the review currently 

conducted of compliance with the requirement that targets are reasonably believed to be 

non-U.S. persons located outside the United States.

Explanation for the Recommendation:

This recommendation is designed to ensure that when the NSA selects a target for 

surveillance under Section 702, a valid foreign intelligence purpose supports the targeting 

decision. 

The Board’s review of the Section 702 program showed that the procedures for 

documenting targeting decisions within the NSA, and the procedures for reviewing those 

decisions within the executive branch, focus primarily on establishing that a potential 

target is a non-U.S. person reasonably believed to be located abroad. The process for 

documenting and reviewing the foreign intelligence purpose of a targeting decision is not 

as rigorous, and typically agency personnel indicate what category of foreign intelligence 

information they expect to obtain from targeting a particular person in a single brief 

sentence that contains only minimal information about why the analyst believes that 
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targeting this person will yield foreign intelligence information. However, the “foreign 

intelligence purpose” determination is a critical part of the statutory framework under 

Section 702. Changes to the targeting procedures that provide more guidance to analysts 

and require more explanation regarding the foreign intelligence purpose of a targeting will 

help analysts better articulate this element of their targeting decisions. When analysts 

articulate at greater length the bases for their targeting decisions, the executive branch 

oversight team that later reviews those decisions will be better equipped to meaningfully 

review them.

Discussion of Status:

As part of the annual certification process for the Section 702 program, the government 

submitted revised NSA targeting procedures for approval by the FISC. These revised 

procedures included changes designed to address Recommendation 1 of the Board’s 

Section 702 report. The Court approved these revised procedures as part of the annual 

certification process.

The Board agrees that the revised procedures implement subpart (b) of this 

recommendation, but find that subpart (a) is only partially implemented. The revised 

targeting procedures specify in somewhat more detail the procedure, but do not add or 

clarify substantive criteria, for determining the expected foreign intelligence value of a 

particular target.

The NSA also has updated its internal guidance and training for analysts to implement the 

revised procedures. This guidance included exemplars and the supporting rationale for an 

improved description of the foreign intelligence that the analyst expects to receive by the 

tasking. NSA has shared the updated TAR guidance with the FBI and CIA to ensure that they 

provide NSA with the required documentation in support of their targeting nominations.

The Board has been advised that now that the NSA’s updated targeting procedures have 

been approved, the compliance audits conducted by the DOJ/ODNI oversight teams include 

review of the written explanations documenting the foreign intelligence purpose for 

targeting determinations. This has facilitated the oversight team’s assessment of whether 

the individual targeting decisions made by NSA analysts under Section 702 were justified 

by a foreign intelligence purpose.
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Recommendation 2: Update the FBI’s Minimization Procedures to 

Accurately Reflect the Bureau’s Querying of Section 702 Data for Non–

Foreign Intelligence Matters, and Place Additional Limits on the FBI’s 

Use of Section 702 Data in Such Matters

Status: 

Implemented

Text of the Board’s Recommendation:

The FBI’s minimization procedures should be updated to more clearly reflect the actual 

practice for conducting U.S. person queries, including the frequency with which Section 702 

data may be searched when making routine queries as part of FBI assessments and 

investigations. Further, some additional limits should be placed on the FBI’s use and 

dissemination of Section 702 data in connection with non–foreign intelligence criminal 

matters.3

Explanation for the Recommendation:

Even though FBI analysts and agents who solely work on non–foreign intelligence crimes 

are not required to conduct queries of databases containing Section 702 data, they are 

permitted to conduct such queries and many do conduct such queries. This is not clearly 

expressed in the FBI’s minimization procedures, and the minimization procedures should 

be modified to better reflect this actual practice. The Board believes that it is important for 

accountability and transparency that the minimization procedures provide a clear

representation of operational practices.

In addition, in light of the privacy and civil liberties implications of using Section 702 

information, collected under lower thresholds and for a foreign intelligence purpose, in the 

FBI’s pursuit of non–foreign intelligence crimes, the Board believes it is appropriate to 

place some additional limits on what can be done with Section 702 information.

Discussion of Status:

As part of the annual certification process for the Section 702 program, the government 

submitted revised FBI minimization procedures for approval by the FISC. These revised 

procedures included changes designed to address Recommendation 2 of the Board’s 

 

3 Board Chairman David Medine and Board Member Patricia Wald joined this recommendation but in 

a separate statement recommended requiring judicial approval for the FBI’s use of Section 702 data in non–

foreign intelligence matters. Board Members Rachel Brand and Elisebeth Collins would require an analyst 

who has not had FISA training to seek supervisory approval before viewing responsive 702 information and 

would require higher-level Justice Department approval before Section 702 information could be used in the 

investigation or prosecution of a non–foreign intelligence crime.
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Section 702 report. The court approved these revised procedures as part of the annual 

certification process.

The Board agrees that the changes implement the Board’s recommendation.

Recommendation 3: Require NSA and CIA Personnel to Provide a 

Statement of Facts Explaining their Foreign Intelligence Purpose Before 

Querying Section 702 Data Using U.S. Person Identifiers, and Develop 

Written Guidance on Applying this Standard

Status: 

Being implemented

Text of the Board’s Recommendation:

The NSA and CIA minimization procedures should permit the agencies to query collected 

Section 702 data for foreign intelligence purposes using U.S. person identifiers only if the 

query is based upon a statement of facts showing that it is reasonably likely to return 

foreign intelligence information as defined in FISA. The NSA and CIA should develop 

written guidance for agents and analysts as to what information and documentation is 

needed to meet this standard, including specific examples.4

Explanation for the Recommendation:

Under the NSA and CIA minimization procedures for the Section 702 program, analysts are 

permitted to perform queries of databases that hold communications acquired under 

Section 702 using query terms that involve U.S. person identifiers. Such queries are 

designed to identify communications in the database that involve or contain information 

relating to a U.S. person. Although the Board recognizes that NSA and CIA queries are 

subject to rigorous oversight by the DOJ’s National Security Division and the ODNI (with 

the exception of metadata queries at the CIA, which are not reviewed by the oversight 

team), we believe that NSA and CIA analysts, before conducting a query involving a U.S. 

person identifier, should provide a statement of facts illustrating why they believe the 

query is reasonably likely to return foreign intelligence information.

5 Implementing these 

measures will help to ensure that analysts at the NSA and CIA do not access or view 

communications acquired under Section 702 that involve or concern U.S. persons when 

there is no valid foreign intelligence reason to do so.

 

4 Board Chairman David Medine and Board Member Patricia Wald joined this recommendation but in 

a separate statement recommended requiring judicial approval for the use of U.S. person queries of Section 

702 data for foreign intelligence purposes.

5 Board Member Elisebeth Collins would not extend a new requirement to this effect to metadata 

queries.
18

Discussion of Status:

As part of the annual certification process for the Section 702 program, the government 

submitted revised NSA and CIA minimization procedures for approval by the FISC. These 

revised procedures included changes designed to address Recommendation 3 of the 

Board’s Section 702 report. The court approved these revised procedures as part of the 

annual certification process.

The Board agrees that the changes in the minimization procedures implement the Board’s 

recommendation.

The status of the CIA metadata queries remains the same as reported in the Board’s 

Recommendations Assessment Report of January 2015, namely with respect to the CIA’s 

metadata queries using U.S. person identifiers, the CIA accepted and plans to implement 

this recommendation as it refines internal processes for data management. Thus, the CIA’s 

new minimization procedures do not reflect changes to implement this recommendation 

with regard to metadata queries.

Recommendation 4: Provide the FISC with Documentation of Section 

702 Targeting Decisions and U.S. Person Queries

Status: 

Substantially implemented

Text of the Board’s Recommendation:

To assist in the FISA court’s consideration of the government’s periodic Section 702 

certification applications, the government should submit with those applications a random 

sample of tasking sheets and a random sample of the NSA’s and CIA’s U.S. person query 

terms, with supporting documentation. The sample size and methodology should be 

approved by the FISA court.

Explanation for the Recommendation:

Providing a random sample of targeting decisions would allow the FISC to take a 

retrospective look at the targets selected over the course of a recent period of time. The 

data could help inform the FISA court’s review process by providing some insight into 

whether the government is, in fact, satisfying the “foreignness” and “foreign intelligence 

purpose” requirements, and it could signal to the court that changes to the targeting 

procedures may be needed, or prompt inquiry into that question. The data could provide 

verification that the government’s representations during the previous certification 

approval were accurate, and it could supply the FISC with more information to use in 
19

determining whether the government’s acquisitions comply with the statute and the 

Fourth Amendment. 

Similarly, a retrospective sample of U.S. person query terms and supporting documentation 

will allow the FISC to conduct a fuller review of the government’s minimization procedures. 

Such a sample could allow greater insight into the methods by which information gathered 

under Section 702 is being utilized, and whether those methods are consistent with the 

minimization procedures. While U.S. person queries by the NSA and CIA are already subject 

to rigorous executive branch oversight (with the exception of metadata queries at the CIA), 

supplying this additional information to the FISC could help guide the court by highlighting 

whether the minimization procedures are being followed and whether changes to those 

procedures are needed.

Discussion of Status:

The government proposed possible sampling methodologies to the FISC, and provided the 

FISC’s legal staff as well as the court’s judges with a briefing during which they reviewed a 

sample of tasking sheets and a sample of U.S. person queries. In its Memorandum Opinion 

and Order reauthorizing the Section 702 program, the court referred to this 

recommendation by the Board, and noted:

The government adopted this recommendation, and in January 2015 it provided the 

Court’s legal staff with an extensive briefing on its oversight activities, as well as 

sample tasking sheets and query terms. The government offered to make additional 

tasking sheets and query terms available to the Court. At the Court’s request, the 

government provided an overview of its Section 702 oversight efforts to all of the 

Court’s judges in May 2015, which included a review of sample tasking sheets. These 

briefings confirmed the Court’s earlier understanding that the government’s 

oversight efforts with respect to Section 702 collection are robust.

In considering the recertification of the Section 702 program, the FISC did not make any 

decision on a sampling methodology. To date the Court has not requested additional 

tasking sheets or queries beyond what was provided in January and May 2015.

Recommendation 5: Create and Submit to the FISC a Single Consolidated 

Document Describing All Significant Rules Governing Operation of the 

Section 702 Program

Status: 

Implemented by the executive branch
20

Text of the Board’s Recommendation:

As part of the periodic certification process, the government should incorporate into its 

submission to the FISA court the rules for operation of the Section 702 program that have 

not already been included in certification orders by the FISA court, and that at present are 

contained in separate orders and opinions, affidavits, compliance and other letters, hearing 

transcripts, and mandatory reports filed by the government. To the extent that the FISA 

court agrees that these rules govern the operation of the Section 702 program, the FISA 

court should expressly incorporate them into its order approving Section 702 

certifications.

Explanation for the Recommendation:

The government’s operation of the Section 702 program must adhere to the targeting and 

minimization procedures that are approved by the FISA court, as well as to the pertinent 

Attorney General guidelines and the statute itself. The government also makes additional 

representations to the FISA court through compliance notices and other filings, as well as 

during hearings, that together create a series of more rigorous precedents and a common 

understanding between the government and the court regarding the operation of the 

program. Such rules have precedential value and create real consequences, as the 

government considers itself bound to abide by the representations it makes to the FISA 

court. To the extent that the rules which have emerged from these representations and this 

interactive process govern the operation of the Section 702 program, they should be 

memorialized in a single place and incorporated into the FISC’s certification review. This 

consolidation of rules will also facilitate congressional oversight of the Section 702 

program, and the Board views this recommendation as a measure to promote good 

government.

Discussion of Status:

During the certification process, the government submitted a “Summary of Notable Section 

702 Requirements” as part of its submission. The document includes references to hearing 

transcripts, compliance letters and reports filed with the FISC, and other relevant 

documents regarding the operation of the Section 702 program. As noted in the document’s 

introduction, it “is not inclusive of all currently applicable rules and requirements for the 

operation of the Section 702 program, but is intended as a reference guide to prominent 

concepts governing the program.” The FISC noted in its Memorandum Opinion and Order 

reauthorizing the Section 702 program that this document had been submitted, but the 

Court did not incorporate the filing into its order or otherwise refer to the filing.
21

Recommendation 6: Periodically Assess Upstream Collection 

Technology to Ensure that Only Authorized Communications Are 

Acquired

Status: 

Implemented

Text of the Board’s Recommendation:

To build on current efforts to filter upstream communications to avoid collection of purely 

domestic communications, the NSA and DOJ, in consultation with affected 

telecommunications service providers, and as appropriate, with independent experts, 

should periodically assess whether filtering techniques applied in upstream collection 

utilize the best technology consistent with program needs to ensure government 

acquisition of only communications that are authorized for collection and prevent the 

inadvertent collection of domestic communications.

Explanation for the Recommendation:

Upstream collection involves a greater risk that the government will acquire wholly 

domestic communications, which it is not authorized to intentionally collect under Section 

702. Ensuring that the upstream collection process comports with statutory limits and with 

agency targeting procedures involves an important technical process of filtering out wholly 

domestic communications. The government acknowledges, however, that the technical 

methods used to prevent the acquisition of domestic communications do not completely 

prevent them from being acquired. Even if domestic communications were to constitute a 

very small percentage of upstream collection, this could still result in a large overall 

number of purely domestic communications being collected. Mindful of these 

considerations, the Board believes that there should be an ongoing dialogue, both within 

the government and in cooperation with telecommunications providers or independent 

experts, to ensure that the means being used to filter for domestic communications use the 

best technology. We also believe that the determination about whether this is the case 

should be continually revisited.

Discussion of Status:

The NSA conducted a review based upon the Board’s recommendation. The NSA completed 

its review and determined that at this time the best technology is being used for filtering. 

The NSA has advised the Board that it will periodically review whether the existing study 

remains accurate. If technology has changed sufficiently to make the existing study no 

longer accurate, the NSA will conduct a new study.
22

Recommendation 7: Examine the Technical Feasibility of Limiting

Particular Types of “About” Collection

Status: 

Implemented

Text of the Board’s Recommendation:

The NSA periodically should review the types of communications acquired through “about” 

collection under Section 702, and study the extent to which it would be technically feasible 

to limit, as appropriate, the types of “about” collection.

Explanation for the Recommendation:

In the upstream collection process, the NSA acquires not only Internet communications 

sent to and from the selector, such as an email address, used by a targeted person, but also 

communications that simply contain reference to the selector, sometimes in the body of the 

communication. These are termed “about” communications, because they are not to or 

from, but rather “about” the communication selectors of targeted persons. In addition, for 

technical reasons, “about” collection is needed even to acquire some communications that 

actually are to or from a target. Other types of “about” collection can result in the 

acquisition of communications between two non-targets, thereby implicating greater 

privacy concerns. Moreover, the permissible scope of targeting in the Section 702 program 

is broad enough that targets need not themselves be suspected terrorists or other bad 

actors. Thus, if the email address of a target appears in the body of a communication 

between two non-targets, it does not necessarily mean that either of the communicants is 

in touch with a suspected terrorist.

While “about” collection is valued by the government for its unique intelligence benefits, it 

is, to a large degree, an inevitable byproduct of the way the NSA conducts much of its 

upstream collection. At least some forms of “about” collection present novel and difficult 

issues regarding the balance between privacy and national security. But current 

technological limits make any debate about the proper balance somewhat academic, 

because it is largely unfeasible to limit “about” collection without also eliminating a 

substantial portion of upstream’s “to/from” collection, which would more drastically 

hinder the government’s counterterrorism efforts. We therefore recommend that the NSA 

work to develop technology that would enable it to identify and distinguish among the 

types of “about” collection at the acquisition stage, and then selectively limit or modify its 

“about” collection, as may later be deemed appropriate.
23

Discussion of Status:

As with the previous recommendation, the NSA conducted a review based upon the Board’s 

recommendation and concluded that no changes are practical at this time. The NSA has 

advised the Board that it will periodically review whether the existing study remains 

accurate. If technology has changed sufficiently to make the existing study no longer 

accurate, the NSA will conduct a new study.

Recommendation 8: Publicly Release the Current Minimization 

Procedures for the CIA, FBI, and NSA

Status: 

Implemented

Text of the Board’s Recommendation:

To the maximum extent consistent with national security, the government should create 

and release, with minimal redactions, declassified versions of the FBI’s and CIA’s Section 

702 minimization procedures, as well as the NSA’s current minimization procedures.

Explanation for the Recommendation:

The Board believes that the public would benefit from understanding the procedures that 

govern the acquisition, use, retention, and dissemination of information collected under 

Section 702. The Board respects the government’s need to protect its operational 

methodologies and practices, but it also recognizes that transparency enables 

accountability to the public that the government serves. Therefore, the Board urges the 

government to engage in a declassification review and, to the greatest extent possible 

without jeopardizing national security, release unredacted versions of the FBI, CIA, and 

NSA minimization procedures.

Discussion of Status:

The Intelligence Community released declassified versions of all three agencies’ thencurrent minimization procedures in February 2015. 

Recommendation 9: Adopt Measures to Document and Publicly Release 

Information Showing How Frequently the NSA Acquires and Uses 

Communications of U.S. Persons and People Located in the United States

Status: 

Being implemented
24

Text of the Board’s Recommendation:

The government should implement five measures to provide insight about the extent to 

which the NSA acquires and utilizes the communications involving U.S. persons and people 

located in the United States under the Section 702 program. Specifically, the NSA should 

implement processes to annually count the following: (1) the number of telephone 

communications acquired in which one caller is located in the United States; (2) the 

number of Internet communications acquired through upstream collection that originate or 

terminate in the United States; (3) the number of communications of or concerning U.S. 

persons that the NSA positively identifies as such in the routine course of its work; (4) the 

number of queries performed that employ U.S. person identifiers, specifically 

distinguishing the number of such queries that include names, titles, or other identifiers 

potentially associated with individuals; and (5) the number of instances in which the NSA 

disseminates non-public information about U.S. persons, specifically distinguishing 

disseminations that includes names, titles, or other identifiers potentially associated with 

individuals. These figures should be reported to Congress in the NSA Director’s annual 

report and should be released publicly to the extent consistent with national security.

Explanation for the Recommendation:

Since the enactment of the FISA Amendments Act in 2008, the extent to which the 

government incidentally acquires the communications of U.S. persons under Section 702 

has been one of the biggest open questions about the program, and a continuing source of 

public concern. The executive branch has maintained that it cannot provide such a number 

— because it is often difficult to determine from a communication the nationality of its 

participants, and because the large volume of collection under Section 702 would make it 

impossible to conduct such determinations for every communication that is acquired. The 

executive branch also has pointed out that any attempt to document the nationality of 

participants to communications acquired under Section 702 would actually be invasive of 

privacy, because it would require government personnel to spend time scrutinizing the 

contents of private messages that they otherwise might never access or closely review. 

As a result of this impasse, lawmakers and the public do not have even a rough estimate of 

how many communications of U.S. persons are acquired under Section 702. Based on 

information provided by the NSA, the Board believes that certain measures can be adopted 

that could provide insight into these questions without unduly burdening the NSA or 

disrupting the work of its analysts, and without requiring the agency to further scrutinize 

the contents of U.S. persons’ communications. We believe that the NSA could implement 

five measures, listed above, that collectively would shed some light on the extent to which 

communications involving U.S. persons or people located in the United States are being 

acquired and utilized under Section 702.
25

Discussion of Status:

The NSA has advised the Board that for categories 9(4) and 9(5), as part of its reporting 

under the USA FREEDOM Act, the NSA will report statistics that are substantially similar to 

those requested by the Board. The NSA already reports similar statistics in classified 

reports to Congress (which the Board reviewed during its Section 702 inquiry), and the 

NSA has now agreed to make these numbers publicly available. 

Specifically, for category 9(4), the Board had recommended that the NSA report “the 

number of queries performed that employ U.S. person identifiers, specifically 

distinguishing the number of such queries that include names, titles, or other identifiers 

potentially associated with individuals.” The Justice Department already reports to 

Congress, in a classified semiannual report required by FISA, the number of metadata 

queries that use a U.S. person identifier, and also the number of U.S. person identifiers 

approved for content queries. The NSA will report these numbers publicly as part of its USA 

FREEDOM Act reporting, although it will not separately break out the number of such 

queries that include names, titles, or other identifiers potentially associated with 

individuals as described in subpart (4) of the Board’s recommendation. 

For category 9(5), the Board had recommended that the NSA report “the number of 

instances in which the NSA disseminates non-public information about U.S. persons, 

specifically distinguishing disseminations that includes names, titles, or other identifiers 

potentially associated with individuals.” As required by FISA, the NSA Director and NSA 

Inspector General already report to Congress, in classified annual reports, the number of 

disseminated NSA intelligence reports that refer to a U.S. person identity and the number of 

U.S. person identities released by the NSA in response to requests for identities that were 

not referred to by name or title in the original reporting. The NSA advises the Board that it 

also plans to declassify and publicly report these numbers as part of its USA FREEDOM Act 

reporting, although again, it will not separately break out the number of such queries that 

include names, titles, or other identifiers potentially associated with individuals as 

described in subpart (5) of the Board’s recommendation.

The Board had recommended in subparts (1), (2), and (3) that the NSA report “(1) the 

number of telephone communications acquired in which one caller is located in the United 

States; (2) the number of Internet communications acquired through upstream collection 

that originate or terminate in the United States; (3) the number of communications of or 

concerning U.S. persons that the NSA positively identifies as such in the routine course of 

its work.” With regard to those subparts of the Board’s recommendation, the NSA has 

informed the Board that it has considered various approaches and has confronted a variety 

of challenges. However, the NSA has advised that it remains committed to developing and 

implementing measures that will, in the language of the Board’s recommendation, “provide 

insight about the extent to which the NSA acquires and utilizes” communications involving 
26

U.S. persons and people located in the United States under the Section 702 program. The 

NSA seeks to work with Board staff to develop such measures, either through further 

refinement of the measures described in the Board’s recommendation or through 

development of alternative approaches.

Recommendation 10: Develop a Methodology to Assess the Value of 

Counterterrorism Programs

Status: 

Being implemented

Text of the Board’s Recommendation:

The government should develop a comprehensive methodology for assessing the efficacy 

and relative value of counterterrorism programs.

Explanation for the Recommendation:

Determining the efficacy and value of particular counterterrorism programs is critical. 

Without such determinations, policymakers and courts cannot effectively weigh the 

interests of the government in conducting a program against the intrusions on privacy and 

civil liberties that it may cause. Accordingly, the Board believes that the government should 

develop a methodology to gauge and assign value to its counterterrorism programs, and 

use that methodology to determine if particular programs are meeting their stated goals. 

The Board is aware that the ODNI conducts studies to measure the relative efficacy of 

different types of intelligence activities to assist in budgetary decisions. The Board believes 

that this important work should be continued, as well as expanded so as to differentiate 

more precisely among individual programs, in order to assist policymakers in making 

informed, data-driven decisions about governmental activities that have the potential to 

invade the privacy and civil liberties of the public.

Discussion of Status:

The ODNI has advised the Board that it has been working to develop a comprehensive 

methodology for assessing efficacy, including a range of quantitative and qualitative 

metrics. The ODNI also advises that it will soon provide the Board with a report outlining 

this methodology. The Board looks forward to reviewing the report and working with the 

ODNI on this critical initiative.