ANNEX 15: THE LAW OF THE FIVE EYES
States.” The certification must also attest that the Attorney General has adopted
Guidelines to ensure compliance with the s702 framework.
(c)
A judge of the FISC reviews the minimisation and targeting provisions of those
certifications before they are implemented. They must be satisfied that the
targeting procedures are “reasonably designed” to meet the objectives set out
above.115 The presiding judge writes an opinion setting out why he or she
considers that the procedures meet that standard and also why they comply
with the First Amendment right to free speech.
(d)
However, the judge does not have to approve the targeting decisions: they do
not have to satisfy themselves that the target (or targets) are a foreign power or
agents of a foreign power.116
(e)
The NSA have published a fact sheet on their minimisation procedures, which
provides that inadvertently acquired communication of or concerning a US
person must be promptly destroyed if it is neither relevant to the authorised
purpose or evidence of a crime.117
97.
The Inspector General assesses compliance with the procedural requirements and
reports on them on an annual basis to Congress. The Attorney General also submits
a report to Congress each year setting out the number of applications and extensions
of s702 surveillance certificates and the number of those orders or extensions granted,
modified or denied.118 He also submits a semi-annual assessment to three
Congressional select committees concerning all electronic surveillance under s702.119
98.
Section 702 provided the basis for the US Government to carry out its PRISM and
Upstream collection programs (described more fully at Annex 7 to this Report).
99.
A third, and equally controversial, aspect of FISA 1978 is Subchapter IV: Access to
Certain Business Records for Foreign Intelligence Purposes (known as s215). It
provides that the Director of the FBI, or a designee, may make an application for an
order requiring the production of any “tangible things (including books, records, papers,
documents, and other items) for an investigation to obtain foreign intelligence
information not concerning a United States person or to protect against international
terrorism or clandestine intelligence activities.”120
100.
An application under s215 should be made to the FISC and include a statement of facts
showing that there are reasonable grounds to believe that the things sought are
relevant to an authorised investigation.121 If the court is satisfied that that is the case,
it will issue an order that describes the tangible things that must be provided “with
sufficient particularity to permit them to be fairly identified.”
115
50 U.S.C. § 1881a (i) (2)(B)(i)
50 USC § 1881a (g).
https://www.fas.org/irp/news/2013/06/nsa-sect702.pdf.
50 U.S.C. § 1807.
50 U.S.C. § 1808.
50 U.S.C. § 1861(1).
Ibid. 1861(1) (b).
116
117
118
119
120
121
368