NSA Section 702 and PRISM: primary documents

During a case review, the FBI conducted queries of Section 702 databases using identifiers associated with over 19,000 individuals. These individuals had in common that they had donated to the same congressional candidate. The FBI agent who conducted these queries did not have a foreign intelligence basis for querying the communications of each of these 19,000-plus individuals. [FISC Opinion, Docket No. BR 22-02, publicly released in redacted form, 2022.]

Following civil unrest in 2020, the FBI conducted queries related to civil disorder. The Court's review found that a substantial number of these queries did not meet the querying standard because the FBI did not have a foreign intelligence or criminal nexus that would justify querying the Section 702 database for individuals identified in connection with the civil unrest. [FISC Opinion, Docket No. BR 22-02.]

Among other documented cases in the FISC opinion and related government filings: the FBI queried Section 702 databases for a member-elect of the U.S. Congress; for a state judge who had written publicly about police conduct; and for multiple individuals with whom querying agents had personal relationships rather than investigative ones. Each of these queries was identified as a violation. [FISC Opinion, Docket No. BR 22-02. Confirmed in PCLOB September 2023 report citing same cases.]

The Court finds that the FBI's querying procedures and minimization procedures meet the statutory requirements and the requirements of the Fourth Amendment. The Court notes significant concerns regarding the FBI's failure to comply with the querying standard but concludes that structural reforms implemented by the government are adequate to address those concerns. [FISC Opinion, Docket No. BR 22-02. The Court approved the certifications while documenting the violations.]

The FBI has struggled to comply with its querying standard. The FBI's Section 702 queries have shown persistent and widespread instances of agents and analysts failing to use the querying standard correctly, or failing to document their basis for querying correctly. [PCLOB Section 702 Report, September 2023, p. 46.]

The violations documented in the FISC opinions reviewed by the Board represent a persistent pattern rather than isolated incidents. The Board found cases where agents queried Section 702 databases for matters that had no established foreign intelligence or criminal nexus, for individuals the agents knew personally, and for individuals associated with constitutionally protected activities including political donations and participation in protests. [PCLOB Report, September 2023.]

The Board recommends that Congress impose a requirement that the FBI obtain a court order, based on probable cause or a separate statutory standard, before querying Section 702 databases for U.S. persons in criminal investigations. [PCLOB Report, September 2023, p. 7.] The Board notes that the current standard has not provided adequate protection for Americans' Fourth Amendment rights because its application has been inconsistent and poorly documented. [...]

The Court's review of Section 702 certifications is programmatic rather than individualized. The Court approves the parameters within which collection occurs but does not review individual queries before they are conducted. The result is that oversight of individual queries falls primarily to internal FBI compliance mechanisms, which the Board's review found to be insufficient. [PCLOB Report, September 2023.]

During Calendar Year 2021, NSA used Section 702 authority to target 232,432 foreign persons. This represents the number of distinct selectors targeted under Section 702 during the reporting period. [ODNI CY2021 Transparency Report, Table 4.]

In 2021, the FBI conducted approximately 3,394,053 queries of Section 702 data that may have retrieved information about U.S. persons. This figure represents queries that returned results; the total number of queries attempted is higher. [ODNI CY2021 Transparency Report, in conjunction with FBI reporting to the FISC, 2022.]

The 232,432 foreign targets authorized for collection in 2021 represent individuals targeted for NSA surveillance under the program. The 3.4 million queries represent the FBI's searches of the resulting database, which contains the communications of those foreign targets and anyone who communicated with them, including U.S. persons. The ratio of FBI queries to foreign targets is approximately 14.6 queries per foreign target per year, meaning FBI agents searched the database for U.S. person communications more than fourteen times for each foreign target nominally being investigated. [Calculation based on ODNI CY2021 figures.]

The Court holds that backdoor searches of Section 702 databases for information about U.S. persons ordinarily require a warrant supported by probable cause. The Fourth Amendment's protection against unreasonable searches applies when the government searches a database containing the private communications of U.S. persons, even if that database was lawfully compiled from foreign surveillance. [US v. Hasbajrami, EDNY, January 2025.]

The government argues that the collection was lawful because it targeted a foreign person, and that searching the collected data is a continuation of that lawful collection. The Court disagrees. Searching a database containing Americans' private communications is a search of those communications, regardless of how the database was initially compiled. The fact that the collection authority authorized foreign targeting does not eliminate the Fourth Amendment interest of U.S. persons whose communications were incidentally swept in. [US v. Hasbajrami.]

The ruling addressed backdoor searches of Section 702 data in criminal investigations. It did not address all possible uses of the database. The Intelligence Community, in its response to the ruling, indicated it would continue conducting queries in foreign intelligence contexts while challenging the ruling's application to those contexts. The 3.4 million annual query figure includes queries for both criminal and foreign intelligence purposes; the post-ruling compliance posture of the FBI in foreign intelligence queries was not publicly established. [Government response to US v. Hasbajrami ruling, January 2025, publicly reported.]

The Guardian and Washington Post articles refer to collection of communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act. They contain numerous inaccuracies. Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States. It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States. [DNI Statement, June 6, 2013. This statement confirmed the existence of Section 702 collection while characterizing the program.]

When it comes to telephone calls, nobody is listening to your telephone calls. That's not what this program's about. [..] What the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people's names, and they are not looking at content. With respect to the Internet and emails: this does not apply to U.S. citizens and it does not apply to people living in the United States. [White House press conference, June 7, 2013. This statement confirmed the existence of the programs while describing their scope in terms subsequently contradicted by the PCLOB reports and FISC opinions documenting warrantless U.S. person queries.]

PRISM is not an undisclosed collection or data mining program. It is an internal government computer system used to facilitate the government's collection of foreign intelligence information from electronic communication service providers under court supervision. [Congressional testimony, June 2013.]