Section 702 of the Foreign Intelligence Surveillance Act, as amended, authorizes the government to target non-United States persons reasonably believed to be located outside the United States to acquire foreign intelligence information. The National Security Agency, in coordination with the Department of Justice and the Office of the Director of National Intelligence, submits targeting procedures to the Foreign Intelligence Surveillance Court for annual approval. Those procedures themselves remain classified in substantial part. What the public record contains are declassified FISC opinions, Privacy and Civil Liberties Oversight Board reports, and inspector general audits that describe how the procedures have been applied.

According to the declassified 2011 FISC opinion by Judge John D. Bates, the NSA’s upstream collection under Section 702 had acquired tens of thousands of wholly domestic communications. The court found that the agency’s targeting and minimization practices, as implemented, exceeded what the statute and the court’s prior orders permitted. Officials later described the overcollection as the result of technical limitations in Internet backbone collection rather than a deliberate expansion of targeting. The record shows the NSA subsequently modified its upstream architecture and ceased “about” collection of communications that merely mentioned a tasked selector.

Subsequent FISC opinions, including those released in redacted form in 2017 and 2018, continued to address targeting compliance. The court noted that NSA analysts had, on multiple occasions, tasked selectors without sufficient documentation that the target was a non-United States person reasonably believed to be abroad. Department of Justice oversight reviews, summarized in public FISC filings, identified instances in which foreignness determinations rested on outdated or incomplete information. The NSA has stated in congressional testimony and ODNI transparency reports that targeting requires a foreign-intelligence purpose and a reasonable belief regarding location and nationality. The declassified judicial findings indicate that the court viewed a subset of actual taskings as falling short of that standard.

Inspector general reports from the Department of Defense and the Intelligence Community have catalogued similar patterns. One 2019 IC IG assessment, publicly summarized, found that a percentage of NSA 702 taskings lacked contemporaneous documentation of the foreignness determination. Agency officials attributed the gaps to high-volume operations and evolving communications technology. The FISC, in later opinions, required additional reporting and training rather than rejecting the targeting procedures wholesale. The court has repeatedly approved the procedures while criticizing their implementation.

Public FISC opinions also address the distinction between targeting and subsequent querying of already-collected data. While FBI querying of U.S. person identifiers has drawn more recent judicial and congressional attention, NSA targeting remains the initial filter. Declassified 2020 and 2021 FISC opinions noted that NSA collection under 702 continued to incidentally acquire U.S. person communications when a foreign target communicated with persons inside the United States. The targeting procedures, according to the court’s descriptions, do not prohibit such incidental collection; they require post-acquisition minimization. The NSA has publicly described incidental collection as an unavoidable byproduct of targeting foreign intelligence. The FISC record shows the court has accepted that characterization while imposing stricter documentation and auditing requirements.

Congressional reauthorization debates in 2018 and 2023–2024 relied in part on these declassified opinions. Lawmakers cited FISC findings of noncompliance when arguing for additional statutory limits on targeting or querying. Intelligence Community officials, in open hearings, maintained that the targeting procedures already incorporate the statutory “reasonably believed” standard and that compliance incidents, while real, represent a small fraction of overall taskings. The public docket does not contain the full targeting procedures; it contains the court’s evaluations of how those procedures have functioned in practice.

The tension visible in the record is therefore not primarily a dispute over the written targeting rules themselves, which remain largely classified, but over documented instances in which implementation diverged from the rules as the FISC understood them. ODNI statistical transparency reports list the number of 702 targets in the tens of thousands annually, without breaking out compliance incident rates in equivalent detail. FISC opinions, by contrast, devote substantial discussion to specific categories of error—insufficient foreignness documentation, overcollection of domestic communications, and delayed reporting of incidents.

No public FISC opinion has found that the NSA’s targeting procedures, as written, authorize the targeting of United States persons or persons inside the United States. The court’s criticisms have centered on execution, technical collection methods, and the adequacy of post-collection handling. Agency statements emphasize the same statutory limits. The declassified judicial record, however, repeatedly records that those limits were not always observed in operational practice, prompting remedial orders, architectural changes, and heightened oversight reporting. That gap between the described procedures and the documented implementation remains the central public finding of the FISC opinions released to date.