# FISA Court Opinion (2016)

In 2016, another non-compliance case came before the FISC. Yet again, the NSA was not compliant with their minimization procedures “involving queries of data...using U.S. person identifiers” (FISC 2016, 4). The government revealed this information to the court, and the court “was not satisfied that the government had sufficiently ascertained the scope of the compliance problems or developed and implemented adequate solutions” (5). The court worked with the government to amend the agency’s procedures, which “substantially change[d] how NSA will conduct aspects of Section 702 collection, and largely resolve[d] compliance problems” (6).

A report by the NSA’s Inspector General indicated that the agency’s analysts “used U.S.-person identifiers to query results of internet ‘upstream’ collection, even though the NSA’s minimization procedures prohibited such queries,” and these queries occurred “with greater frequency than previously disclosed to the court” (14-15). This allowed the NSA to “acquire an entire MCT [Multiple Communication Transactions, i.e. emails, chats, or other online messages] for which the active user was a non-target…, merely because a single discrete communication within the MCT was to, from or contained a reference to a tasked selector” (16).

It also allowed the NSA to collect data “even if the non-target active user was a U.S. person in the United States and the MCT contained a large number of domestic communications that did not pertain to the foreign intelligence target” (16-17). This shows that the NSA frequently used U.S. citizens’ identifiers to specifically target people’s data. Further, the court recognized that this type of intelligence gathering was “more likely than other forms of...collection to contain information of or concerning United States persons with no foreign intelligence value.” (16). The government did not disclose this information as soon as it was available, which showed a “very serious Fourth Amendment issue” (19).

It took the government five months and several extensions of the certification before they could locate all of the programs that were non-compliant, suggesting a large number of loopholes in the NSA’s minimization procedures. The court ordered the NSA to delete all of the data collected on U.S. citizens through non-compliant means, and they were prohibited from collecting similar data on U.S. citizens.

# Sources

  1. Foreign Intelligence Surveillance Court (FISC). Office of the Director of National Intelligence. Section 702 2016 Certification Memorandum Opinion and Order. Washington, D.C., 2016. https://www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (opens new window) (Archive).