Page 16 - AssessmentReport

Recommendation 2: Update the FBI’s Minimization Procedures to
Accurately Reflect the Bureau’s Querying of Section 702 Data for Non–

Foreign Intelligence Matters, and Place Additional Limits on the FBI’s
Use of Section 702 Data in Such Matters

Status:

Implemented

Text of the Board’s Recommendation:

The FBI’s minimization procedures should be updated to more clearly reflect the actual
practice for conducting U.S. person queries, including the frequency with which Section 702
data may be searched when making routine queries as part of FBI assessments and
investigations. Further, some additional limits should be placed on the FBI’s use and
dissemination of Section 702 data in connection with non–foreign intelligence criminal
3
matters.
Explanation for the Recommendation:

Even though FBI analysts and agents who solely work on non–foreign intelligence crimes

are not required to conduct queries of databases containing Section 702 data, they are
permitted to conduct such queries and many do conduct such queries. This is not clearly
expressed in the FBI’s minimization procedures, and the minimization procedures should
be modified to better reflect this actual practice. The Board believes that it is important for
accountability and transparency that the minimization procedures provide a clear
representation of operational practices.
In addition, in light of the privacy and civil liberties implications of using Section 702
information, collected under lower thresholds and for a foreign intelligence purpose, in the
FBI’s pursuit of non–foreign intelligence crimes, the Board believes it is appropriate to
place some additional limits on what can be done with Section 702 information.

Discussion of Status:

As part of the annual certification process for the Section 702 program, the government
submitted revised FBI minimization procedures for approval by the FISC. These revised
procedures included changes designed to address Recommendation 2 of the Board’s

3 Board Chairman David Medine and Board Member Patricia Wald joined this recommendation but in
a separate statement recommended requiring judicial approval for the FBI’s use of Section 702 data in non–
foreign intelligence matters. Board Members Rachel Brand and Elisebeth Collins would require an analyst
who has not had FISA training to seek supervisory approval before viewing responsive 702 information and
would require higher-level Justice Department approval before Section 702 information could be used in the
investigation or prosecution of a non–foreign intelligence crime.

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