In 2008, Congress enacted the FISA Amendments Act, which made changes to the Foreign Intelligence Surveillance Act of 1978 (FISA). Those changes included a new provision, Section 702, permitting the Attorney General and the Director of National Intelligence to jointly authorize surveillance conducted within the U.S. but targeting only non-U.S. persons reasonably believed to be located outside the U.S. The Privacy and Civil Liberties Oversight Board (PCLOB) began reviewing implementation of the FISA Amendments Act early in 2013, shortly after the Board began operations as an independent agency. This report contains PCLOB's detailed analysis of the Section 702 program, with a focus on increasing transparency to the public regarding the surveillance program. It addresses the Section 702 program's development and operation, statutory basis, constitutional implications, and whether it strikes the right balance between national security and privacy and civil liberties, and will make recommendations for policy reforms. This is a print on demand report.

This report, issued by the Privacy and Civil Liberties Oversight Board, examines the collection of electronic communications under Section 702, and provides analysis and recommendations regarding the program's implementation. Section 702 has its roots in the President's Surveillance Program developed in the immediate aftermath of the September 11th attacks. The Section 702 program is extremely complex, involving multiple agencies, collecting multiple types of information, for multiple purposes. Although U.S. persons may not be targeted under Section 702, communications of or concerning U.S. persons may be acquired in a variety of ways. An example is when a U.S. person communicates with a non-U.S. person who has been targeted, resulting in what is termed "incidental" collection. Another example is when two non-U.S. persons discuss a U.S. person. Communications of or concerning U.S. persons that are acquired in these ways may be retained and used by the government, subject to applicable rules and requirements. The communications of U.S. persons may also be collected by mistake, as when a U.S. person is erroneously targeted or in the event of a technological malfunction, resulting in "inadvertent" collection. Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation's security and producing useful foreign intelligence.

Shortly after the Privacy and Civil Liberties Oversight Board ("PCLOB" or "Board") began operation as a new independent agency, Board Members identified a series of programs and issues to prioritize for review. As announced at the Board's public meeting in March 2013, one of these issues was the implementation of the Foreign Intelligence Surveillance Act Amendments Act of 2008.

Section 702 statutorily authorizes the government to target non-U.S. persons, reasonably believed to be located outside the United States, in order to collect foreign intelligence information using the compelled assistance of U.S. electronic communications service providers (ECSPs). The government may target only individuals who are expected to communicate, receive, or possess foreign intelligence information within given categories of intelligence previously authorized by the Attorney General and the Director of National Intelligence (DNI) and certified for collection by the FISC. This report presents PCLOB’s findings in an unclassified format to the greatest extent possible, consistent with the protection of classified information and applicable law. It carries forward and updates factual and legal information from the 2014 PCLOB Report, and adds new discussions where substantial changes have been implemented, greater transparency is now possible, or new information has become available. New sets of recommendations and Board Member statements are also included. There is also a Classified Annex to this Report (Annex C) and to the Separate Statement of Board Members Beth A. Williams and Richard E. DiZinno (Annex D)

[Transcription of] hearing focused on the government's collection of foreign intelligence information from electronic communication service providers under court supervision pursuant to Section 702 of the Foreign Intelligence Surveillance Act.