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Text of the Board’s Recommendation:

As part of the periodic certification process, the government should incorporate into its
submission to the FISA court the rules for operation of the Section 702 program that have
not already been included in certification orders by the FISA court, and that at present are
contained in separate orders and opinions, affidavits, compliance and other letters, hearing
transcripts, and mandatory reports filed by the government. To the extent that the FISA
court agrees that these rules govern the operation of the Section 702 program, the FISA
court should expressly incorporate them into its order approving Section 702
certifications.

Explanation for the Recommendation:

The government’s operation of the Section 702 program must adhere to the targeting and
minimization procedures that are approved by the FISA court, as well as to the pertinent
Attorney General guidelines and the statute itself. The government also makes additional
representations to the FISA court through compliance notices and other filings, as well as
during hearings, that together create a series of more rigorous precedents and a common
understanding between the government and the court regarding the operation of the
program. Such rules have precedential value and create real consequences, as the
government considers itself bound to abide by the representations it makes to the FISA
court. To the extent that the rules which have emerged from these representations and this
interactive process govern the operation of the Section 702 program, they should be
memorialized in a single place and incorporated into the FISC’s certification review. This
consolidation of rules will also facilitate congressional oversight of the Section 702
program, and the Board views this recommendation as a measure to promote good
government.

Discussion of Status:

During the certification process, the government submitted a “Summary of Notable Section
702 Requirements” as part of its submission. The document includes references to hearing
transcripts, compliance letters and reports filed with the FISC, and other relevant
documents regarding the operation of the Section 702 program. As noted in the document’s
introduction, it “is not inclusive of all currently applicable rules and requirements for the
operation of the Section 702 program, but is intended as a reference guide to prominent
concepts governing the program.” The FISC noted in its Memorandum Opinion and Order
reauthorizing the Section 702 program that this document had been submitted, but the
Court did not incorporate the filing into its order or otherwise refer to the filing.

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