## Facts

- The government sought annual approval under FISA § 702 for foreign-intelligence surveillance targeting non-U.S. persons reasonably believed to be outside the United States, based on programmatic certifications plus targeting and minimization procedures.
- The NSA conducted “upstream collection,” acquiring Internet communications as they transited domestic backbone infrastructure, using selectors applied at telecommunications network points.
- In 2011, the government disclosed additional operational details of upstream collection not previously described to the court, including handling of “multiple-communication transactions” (MCTs) and acquisition of communications “about” a tasked selector (not merely “to” or “from” it).
- Under the disclosed implementation, when any discrete communication within an MCT matched a tasked selector, the NSA acquired the entire transaction, which could include other discrete communications that did not meet targeting criteria.
- This method resulted in acquisition of a significant volume of communications that were wholly domestic (both endpoints in the United States) and communications involving U.S. persons, even though those communications were not valid § 702 targets.
- The court found prior submissions had not fully and accurately conveyed the scope and mechanics of upstream collection, impairing the court’s review of earlier approvals.
- The court reviewed whether the government’s proposed 2011 targeting and minimization procedures for upstream collection could be approved given these disclosures and the resulting domestic acquisition.

## Issues

1. Whether upstream collection as implemented—acquiring entire MCTs and “about” communications, including wholly domestic communications—complied with § 702’s targeting limits and FISA’s minimization requirements.
2. Whether the acquisition and retention of large quantities of wholly domestic and U.S.-person communications through upstream § 702 collection, under the proposed procedures, was reasonable under the Fourth Amendment.
3. Whether the court could approve the requested § 702 certifications and associated procedures as proposed, or instead had to deny approval and require material procedural modifications.

## Decision

- The court declined to approve the government’s § 702 certifications and minimization procedures for upstream collection as proposed.
- The court held that, as then implemented, upstream collection resulted in acquisition and retention of tens of thousands of wholly domestic communications annually, creating statutory noncompliance and constitutional defects.
- The court found the minimization procedures for upstream collection inadequate to address known acquisition of domestic communications and U.S.-person information.
- The court concluded the program, without stronger safeguards, violated the Fourth Amendment’s reasonableness requirement.
- The court required substantial changes to upstream-related procedures, including tighter handling, retention, and dissemination controls and enhanced compliance measures, as a condition to any continued approval.

## Legal Principles

- Under FISA § 702, targeting procedures must be reasonably designed to limit acquisition to non-U.S. persons reasonably believed to be outside the United States, and § 702 may not be used to intentionally acquire domestic communications or to target U.S. persons or persons known to be in the United States.
- Minimization procedures must meaningfully limit retention, use, and dissemination of U.S.-person information incidentally acquired and must mitigate known risks of domestic acquisition inherent in the collection method.
- Large-scale acquisition and retention of wholly domestic communications content, without individualized warrants or comparable safeguards, can be unreasonable under the Fourth Amendment even when undertaken for foreign-intelligence purposes.
- When the government’s operational descriptions materially diverge from actual collection practices, the court may deny approval and require corrective measures to restore lawful operation and enable effective judicial review.

## Conclusion

The FISC held that upstream § 702 collection, as disclosed in 2011, unlawfully acquired and retained substantial quantities of wholly domestic and U.S.-person communications and that the proposed minimization regime failed to cure the resulting statutory and Fourth Amendment violations; approval was therefore conditioned on significant procedural reforms.


Case Title Redacted, No. [Redacted], 2011 WL 10945618 (FISA Ct. Oct. 3, 2011)