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SECTION 702 REPORT RECOMMENDATIONS

Recommendation 1: Revise NSA Procedures to Better Document the
Foreign Intelligence Reason for Targeting Decisions

Status:
Implemented in part

Text of the Board’s Recommendation:

The NSA’s targeting procedures should be revised to (a) specify criteria for determining the
expected foreign intelligence value of a particular target, and (b) require a written
explanation of the basis for that determination sufficient to demonstrate that the targeting
of each selector is likely to return foreign intelligence information relevant to the subject of
one of the certifications approved by the FISA court. The NSA should implement these
revised targeting procedures through revised guidance and training for analysts, specifying
the criteria for the foreign intelligence determination and the kind of written explanation
needed to support it. We expect that the FISA court’s review of these targeting procedures
in the course of the court’s periodic review of Section 702 certifications will include an
assessment of whether the revised procedures provide adequate guidance to ensure that
targeting decisions are reasonably designed to acquire foreign intelligence information
relevant to the subject of one of the certifications approved by the FISA court. Upon
revision of the NSA’s targeting procedures, internal agency reviews, as well as compliance
audits performed by the ODNI and DOJ, should include an assessment of compliance with
the foreign intelligence purpose requirement comparable to the review currently
conducted of compliance with the requirement that targets are reasonably believed to be
non-U.S. persons located outside the United States.

Explanation for the Recommendation:

This recommendation is designed to ensure that when the NSA selects a target for
surveillance under Section 702, a valid foreign intelligence purpose supports the targeting
decision.

The Board’s review of the Section 702 program showed that the procedures for
documenting targeting decisions within the NSA, and the procedures for reviewing those
decisions within the executive branch, focus primarily on establishing that a potential
target is a non-U.S. person reasonably believed to be located abroad. The process for
documenting and reviewing the foreign intelligence purpose of a targeting decision is not
as rigorous, and typically agency personnel indicate what category of foreign intelligence
information they expect to obtain from targeting a particular person in a single brief
sentence that contains only minimal information about why the analyst believes that

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