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In 2008, Congress enacted the FISA Amendments Act, which made changes to the Foreign Intelligence Surveillance Act of 1978 (FISA). Those changes included a new provision, Section 702, permitting the Attorney General and the Director of National Intelligence to jointly authorize surveillance conducted within the U.S. but targeting only non-U.S. persons reasonably believed to be located outside the U.S. The Privacy and Civil Liberties Oversight Board (PCLOB) began reviewing implementation of the FISA Amendments Act early in 2013, shortly after the Board began operations as an independent agency. This report contains PCLOB's detailed analysis of the Section 702 program, with a focus on increasing transparency to the public regarding the surveillance program. It addresses the Section 702 program's development and operation, statutory basis, constitutional implications, and whether it strikes the right balance between national security and privacy and civil liberties, and will make recommendations for policy reforms. This is a print on demand report.
This report, issued by the Privacy and Civil Liberties Oversight Board, examines the collection of electronic communications under Section 702, and provides analysis and recommendations regarding the program's implementation. Section 702 has its roots in the President's Surveillance Program developed in the immediate aftermath of the September 11th attacks. The Section 702 program is extremely complex, involving multiple agencies, collecting multiple types of information, for multiple purposes. Although U.S. persons may not be targeted under Section 702, communications of or concerning U.S. persons may be acquired in a variety of ways. An example is when a U.S. person communicates with a non-U.S. person who has been targeted, resulting in what is termed "incidental" collection. Another example is when two non-U.S. persons discuss a U.S. person. Communications of or concerning U.S. persons that are acquired in these ways may be retained and used by the government, subject to applicable rules and requirements. The communications of U.S. persons may also be collected by mistake, as when a U.S. person is erroneously targeted or in the event of a technological malfunction, resulting in "inadvertent" collection. Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation's security and producing useful foreign intelligence.
Shortly after the Privacy and Civil Liberties Oversight Board ("PCLOB" or "Board") began operation as a new independent agency, Board Members identified a series of programs and issues to prioritize for review. As announced at the Board's public meeting in March 2013, one of these issues was the implementation of the Foreign Intelligence Surveillance Act Amendments Act of 2008.
Section 702 statutorily authorizes the government to target non-U.S. persons, reasonably believed to be located outside the United States, in order to collect foreign intelligence information using the compelled assistance of U.S. electronic communications service providers (ECSPs). The government may target only individuals who are expected to communicate, receive, or possess foreign intelligence information within given categories of intelligence previously authorized by the Attorney General and the Director of National Intelligence (DNI) and certified for collection by the FISC. This report presents PCLOB’s findings in an unclassified format to the greatest extent possible, consistent with the protection of classified information and applicable law. It carries forward and updates factual and legal information from the 2014 PCLOB Report, and adds new discussions where substantial changes have been implemented, greater transparency is now possible, or new information has become available. New sets of recommendations and Board Member statements are also included. There is also a Classified Annex to this Report (Annex C) and to the Separate Statement of Board Members Beth A. Williams and Richard E. DiZinno (Annex D)
CONTENTS: 1. UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT - RULES OF PROCEDURE Effective November 1, 2010 2. Foreign Intelligence Surveillance Act (FISA): An Overview 3. Federal Bureau of Investigation Privacy & Civil Liberties Officer, Office of the General Counsel Protections for United States Person Information Acquired Pursuant to Title I and Section 702 of the Foreign Intelligence Surveillance Act 4. FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 [Public Law 95–511; 92 Stat. 1783; approved October 25, 1978] [As Amended Through P.L. 115–118, Enacted January 19, 2018 5. FISA Amendments Act of 2008 6. Review of Procedures and Practices of CIA to Disseminate United States Person Information Acquired Pursuant to Titles I and III and Section 702 of the Foreign Intelligence Surveillance Act (FISA) - August 2017 7. Report of the Director of the Administrative Office of the U.S. Courts on activities of the Foreign Intelligence Surveillance Courts for 2018 8. Report of the Director of the Administrative Office of the U.S. Courts on activities of the Foreign Intelligence Surveillance Courts for 2017 9. Report of the Director of the Administrative Office of the U.S. Courts on activities of the Foreign Intelligence Surveillance Courts for 2016 10. Report of the Director of the Administrative Office of the U.S. Courts on activities of the Foreign Intelligence Surveillance Courts for 2015 11. The FISA Amendments Act: Q&A (2017) 12. Report on the Surveillance Program Operated Pursuant toSection 702of the Foreign Intelligence Surveillance Act - July 2, 2014
[Transcription of] hearing focused on the government's collection of foreign intelligence information from electronic communication service providers under court supervision pursuant to Section 702 of the Foreign Intelligence Surveillance Act.
An unclassified report by five Inspectors General (IGs) on the ¿unprecedented collection activities¿ by U.S. intell. agencies after the 9/11 terror attacks. The IGs include: Glenn Fine, Dept. of Justice; Gordon Heddell, DoD; Patricia Lewis, CIA; George Ellard, NSA; and Roslyn Mazer, Office of the Dir. of Nat. Intell. This unclassified report on the President's Surveillance Program (PSP) summarizes the results of their reviews. Contents: (1) Intro.; (2) Inception of the PSP; (3) Implementation of the PSP; (4) Legal Assessment of the PSP; (5) Transition of Certain Program Activities to Foreign Intell. Surveillance Court Orders; (6) Impact of the PSP on Intell. Community Counterterrorism Efforts; (7) Public Statements about the PSP; (8) Conclusion.
In February of 2016, the Judiciary Committee held a classified hearing that began consideration of the reauthorization of the FISA Amendments Act, which was first signed into law in 2008 and reauthorized in 2012. Much has happened since the law was last reauthorized, however, including the unauthorized disclosures of classified information by Edward Snowden in 2013 that spawned significant public debate on U.S. Government surveillance. There has been jurisprudence upholding the statute's constitutionality. Like congressional oversight, judicial oversight of this program is an integral safeguard. Congress enacted FISA in 1978 to establish statutory guidelines authorizing the use of electronic surveillance in the United States for foreign intelligence purposes. Following enactment, global communications infrastructure shifted from satellite to fiberoptic wire, altering the manner in which domestic and foreign communications are transmitted. This technological shift had the adverse and unintended effect of requiring the government to obtain an individualized FISA court order to monitor foreign communications by non-U.S. persons. In 2008, the FISA Amendments Act established procedures for the collection of foreign intelligence on targets located outside U.S. borders. At its core, Section 702 of the act permits the attorney general and the director of national intelligence to jointly authorize the targeting of non-U.S. persons reasonably believed to be located outside the United States. The intelligence community has deemed Section 702 its most important tool in battling terrorism. However, it has also been criticized by some as an overly broad program that collects communications of U.S. citizens without sufficient legal process.